B A VISWANATH Vs. GOVINDAMMA

JUDGEMENT

(1.) This is plaintiff's appeal questioning the order passed by VII Additional City Civil Judge, Bangalore dated 11.09.2013 in Misc. No. 87/2010 whereunder petition filed by defendant under Order IX Rule 13 read with sections 141 and 151 of C.P.C. has been allowed and Judgment and decree passed in O.S. 2699/2004 on 28.07.2009 decreeing the suit has been set aside and suit has been restored to file on payment of cost of Rs. 2,000/- payable by defendant/petitioner to respondent-plaintiff. I have heard the arguments of Sri. C.G. Gopalaswamy, learned counsel appearing for petitioner and Sri. B. Prabhakar, learned counsel appearing for respondent and perused the records of trial court. By consent of learned advocates appearing for the parties appeal is taken up for final disposal.

(2.) Parties are referred to as per their rank in O.S. 2699/2004. Appellant herein was the plaintiff in O.S. 2699/2004 and he filed the suit for relief of declaration for cancellation of instrument i.e., gift deed dated 13.06.2003. Said suit was contested by respondent-defendant. When the matter was set down for evidence of plaintiff he filed an affidavit in lieu of examination-in-chief on 14.02.2008. Matter was adjourned from time to time for cross examination of PW-1. Subsequently he was discharged and it was posted to defendant's evidence. Later on defendant's evidence was closed on 28.10.2008 and matter was listed for arguments. At that point of time defendant filed an application for recalling of PW-1. It was allowed and PW-1 was cross examined on two occasions. Though sufficient time was granted defendant did not further cross examine PW-1 and as such further cross examination was taken as nil by order dated 03.04.2009. Subsequently defendant and her counsel did not appear and matter was listed for defendant's evidence on 17.04.2009. On the said date none appeared on behalf of defendant and as such defendant evidence was taken as nil. Matter was listed for arguments on 20.04.2009. Even on the said date none appeared on behalf of defendant and as such the trial court heard the arguments of learned counsel appearing for plaintiff and posted the matter to 24.04.2009 for Judgment. On said date Judgment was not pronounced and it was adjourned from time to time from 24.04.2009 to 28.07.2009. Thereafter suit came to be decreed by Judgment and decree dated 28.07.2009. On 17.09.2009 an application under section 151 of C.P.C. was filed by the advocate for plaintiff requesting the court to hear on office objection raised by the registry at the time of filing the suit. Undisputedly no notice of this application has been served on defendant or her counsel. Trial Court by order dated 16.09.2009 allowed the application and over ruled the office objection which related to payment of court fee and accepted the valuation made by plaintiff in the suit.

(3.) Subsequently on 21.01.2010 defendant filed a Miscellaneous in Misc. No. 87/2010 along with an application for condonation of delay. On service of summons in the miscellaneous proceedings plaintiff appeared and filed detailed statement of objections. Plaintiff raised objections regarding maintainability of petition contending that defendant ought to have filed an appeal against Judgment and decree dated 28.07.2009 since it was not an ex parte decree. However, said objection was over ruled by trial court by order dated 12.01.2011. Thereafter parties have tendered oral and documentary evidence. On evaluation of evidence trial court allowed the Miscellaneous petition 87/2010 and set aside the Judgment and decree dated 28.07.2009 passed in O.S. 2699/2004 and restored the suit to its file for being disposed of on merits by order dated 11.09.2013. It is this order which is under challenge in this appeal.