STATE OF KARNATAKA REPRESENTED BY THE ASSISTANT COMMISSIONER, MUZARAI DEPARTMENT, CORPORATION AREA, BANGALORE - 560001, REPRESENTED BY SRI. N. RAMMURTHY Vs. M.S. NAGENDRA KUMAR, S/O M.J. SUBBAIAH AND OTHERS

JUDGEMENT

(1.) THE appellant, State Government had filed OS. No. 7574/2002 seeking declaration of title in respect of suit schedule property, which consists of Ramanjaneya Temple building and adjacent properties. The said suit was filed on 8.11.2002 for the relief of declaration and injunction, which came to be dismissed for default on 18.4.2006. Subsequently, appellant herein filed Miscellaneous Petition seeking recall of the order of dismissal and restoration of the suit on the ground that Assistant Commissioner of Muzrai. Who was incharge of suit died on 7.4.2006. Thereafter, additional charge of Muzrai, Assistant Commissioner, was given to one Smt. Vijaya on 13.6.2006. Subsequently, it was changed by posting another person by name Madhav R to the said post on 14.6.2006. In the meanwhile, nobody appeared in the suit in OS. No.7574/2002, which was posted to 18.4.2006. Hence the said suit came to be dismissed for default. It is further stated that in the month of January, 2006 the previous counsel who was appearing for plaintiff died resulting in issue of court notice to plaintiff. Therefore, in the light of all these confusions there was no representation on behalf of plaintiff on 18.4.2006.

(2.) THE said Miscellaneous Petition in Misc. No. 496/2006 was contested by defendants in the original suit by filing statement of objections denying the grounds urged in the miscellaneous petition. Evidence was recorded in the said Miscellaneous proceedings. On appreciation of pleadings and evidence, the court below dismissed the Miscellaneous Petition holding that there is error on the part of plaintiff in not properly explaining reasons for non appearance of either plaintiff or its counsel on 18.4.2006 either in the pleadings or in evidence adduced before it in the Miscellaneous Petition. This appeal is filed challenging the said order of dismissal dated 1.4.2010 passed in Misc. No. 496/2006.

(3.) CONSIDERING the evidence and pleadings in miscellaneous petition and also finding of the learned trial judge in the order impugned this Court find that there is no justification in the order dated 1.4.2010 passed in Misc. Petition No. 496/2006 dismissing the same and confirming the order dated 18.4.2006 passed in the original suit. The reason assigned to dismiss the Miscellaneous Petition does not stand to reason. The court below while considering the Miscellaneous Petition should have taken into consideration the seriousness of the claim involved in the suit while considering the reason for non appearance on 18.4.2006. it has also failed to notice that the Miscellaneous Petition seeking recall of the said order is filed immediately thereafter. Though there is delay of 46 days, the same is properly explained.