N. NAGENDRA PRASAD Vs. C. YASHODA

JUDGEMENT

(1.) This appeal is filed impugning the order dated 30.07.2013 in Misc. No. 33/2012 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru (for short 'the civil Court'). This petition in Misc. No. 33/2012 is filed by the appellants under Order IX Rule 9 of the Code of Civil Procedure, 1908 for setting aside the order dated 24.11.2011 in O.S. No. 7121/2004 dismissing the appellants' suit for permanent injunction against the respondents for default.

(2.) The appellants filed the suit in O.S. No. 7121/2004 for permanent injunction while the second respondent filed cross suits in O.S. Nos. 5607/2004 and 3104/2006. The appellants' suit in O.S. No. 7121/2004 and the second respondents' suits in O.S. Nos. 5607/2004 and 3104/2006 were clubbed for common trial. However, by order dated 19.09.2011, the civil Court de-linked the suits. The appellants' suit was listed for evidence on 09.11.2011 and on this day, the appellants, who were required to lead evidence, did not lead their evidence. The suit was adjourned to be listed on 24.11.2011. The appellants did not lead evidence even on this day. Therefore, the civil Court dismissed the suit for default. However, on the same day, the learned counsel for the appellants filed an application for recall of the order, which was not considered favourably by the civil Court. As such, the appellants filed the petition in Misc. No. 33/2012 under Order IX Rule 9 of the Code of Civil Procedure, 1908.

(3.) The appellants contended that the first of the appellants, who was conducting the proceedings in O.S. No. 7121/2004 on behalf of the other appellants, could not appear before the civil Court to lead evidence on 24.11.2011 because he was suffering from enteric fever and was advised bed rest. The appellants were bona fide in seeking adjournment on 24.11.2011 and the appellants' bona fides were demonstrated by the fact that the learned counsel for the appellants filed an application on the same day for recall of the order of dismissal. The appellants to establish that the first appellant was indeed suffering from enteric fever, and therefore could not attend the Court on 24.11.2011, examined the first appellant and also relied upon the Certificate issued by the Doctor. The respondents did not cross examine the first appellant nor lead their evidence.