PUTTARAJU Vs. V.R. RAJASHEKAR

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the respondents.

(2.) This appeal is preferred by the appellant/petitioner aggrieved by the order passed by the XI Addl. City Civil Judge, Bangalore (CCH-8) dismissing Misc.No.585/2012. The said Misc.No.585/2012 was filed seeking to restore the order dated 4.7.2012 passed in Misc.No.223/2011 dismissing the same for non-prosecution. The appellant is said to have filed Misc.Petition No.223/2011 seeking to restore the suit in O.S.No.639/2004. The said miscellaneous petition was set down for the appellant/petitioner's evidence on 4.7.2012. On the same day, the petitioner in person is said to have appeared before the Magistrate Court in C.C.No.14570/2007. The said criminal case was filed alleging that the petitioner had forged the agreement of sale, which is the suit document in O.S.No.639/2004. Since the said criminal case came to be adjourned at 3.00 p.m., immediately he had appeared before the court which was conducting Misc.No.223/2011 and came to know that the said petition was dismissed for non-prosecution. The original suit in O.S.639/2004 was filed for specific performance of contract. In the said suit, the date of hearing was miscalculated by the petitioner as 23.02.2011 instead of 22.02.2011. Hence, when the original suit was taken up on 22.02.2011, he did not appear before the court and as a result there was no representation for the plaintiff and hence that suit too, came to be dismissed for non-prosecution. Both the original suit as well as the miscellaneous petition came to be dismissed for no fault of the petitioner, since his absence was not deliberate. The appellant though filed Misc.No.585/2012 seeking to restore the order passed in Misc.No.223/2011, the said petition came to be dismissed by the XI Addl. City Civil Judge, Bangalore. Hence, the present appeal has been filed by the aggrieved appellant seeking to set aside the order passed in Misc.Pet.No.585/2012 dated 27.09.2016 and consequently allow the present appeal.

(3.) The learned counsel for the petitioner Shri R.A. Devanand has taken me through the reasons assigned in the impugned order passed by the court below. The appellant got himself examined as PW-1 and got marked Exhibits P1 and P2. Further, he was also cross-examined by the respondent No.2 counsel. Whereas, on the side of the respondent, no evidence was led and ultimately, the court below on hearing the arguments on both sides and receiving the written argument, proceeded to pass orders on 27.09.2016 dismissing the miscellaneous petition, which is contrary to law, facts and probabilities. It is the further contention of the learned counsel that the reason stated by the appellant in his Miscellaneous Petition at para-3 has been established by producing Exhibit P-2, which is the order-sheet maintained in C.C.No.14570/2007. The said document would establish the fact that the appellant was very much present before the Criminal Court in C.C.No.14570/2007 on that particular day when the Misc.Petition 223/2011 was taken up and dismissed for non-prosecution. Moreover, the court below has also failed to appreciate the fact that the appellant filed the suit in O.S.No.639/2004 against the original respondent to enforce his right under the said agreement to sell and hence, the dismissal of the miscellaneous petition would take away the right of the appellant under the said agreement. Hence, the court below, without even considering the genuine reason for his absence, has proceeded to dismiss the Misc. petition, which has resulted in serious prejudice to the appellant. In support of his case, the learned counsel for the appellant has also relied on a decision of the Apex Court in the case of Sangram Singh v. Election Tribunal Kotah And Another ( AIR 1955 SC 425 ).