RATHNA S RAO Vs. H K MANJUNATHA

JUDGEMENT

(1.) This appeal is filed by the legal representatives of the original plaintiff Smt. Rathna S. Rao in the suit O.S.3411/1992. Her suit was for declaration that the sale deed dated 5.5.1983 executed by the second defendant in favour of first defendant does not bind her; mandatory injunction directing the first defendant to demolish or remove the unauthorized construction made in the suit property and permanent injunction to restrain the first defendant or his attorney from putting up any construction in the suit property. This suit was dismissed for nonprosecution on 5.2.1996. Seeking restoration of the suit, the original plaintiff made a petition under Order IX Rule 9 of the Code of Civil Procedure ('CPC' for short) which was numbered as Misc. No. 400/2002. By order dated 19.2.2008 this petition was allowed and suit restored. Challenging this order, the first defendant preferred a civil revision, i.e., CRP 187/2008. The said revision petition was allowed, the case was remanded to the trial court for re-consideration of the petition under Order IX Rule 9 CPC. At the time of remand, liberty was given to the parties to adduce further evidence. By that time, the original plaintiff was dead and her legal representatives (referred to as 'petitioners' hereafter) had come on record in the civil revision petition itself. After remand, the petitioners examined a doctor by name K. Manoj Kumar as PW2. After appreciating the evidence afresh, the trial court came to conclusion that the delay in filing the petition under Order IX Rule 9 of Civil Procedure Code had not been explained and that there was no merit in the petition itself and therefore dismissed the petition. Therefore, the petitioners have preferred this appeal aggrieved by the dismissal of the miscellaneous petition 400/2002.

(2.) Seeking restoration of the suit, the original plaintiff gave the reasons that prevented her from appearing before the court. She stated that in the suit she had sought an order of temporary injunction. The trial court dismissed the said application and challenging that order, she preferred an appeal to this court. Her advocate told her that so long as MFA was pending in the High Court, the suit would not proceed and therefore she did not attend the court. She was not aware of the dismissal of the suit. She has also stated that she was suffering from arthritis and was not in a position to move out of her house to meet her advocate. For the delay in preferring the petition, she gave reasons that she was not aware of the dismissal of the suit, that she was in possession of the suit property, that one Ramesh came and told her about defendants attempt to put up construction on the suit property; that she asked Ramesh to enquire into the matter and that he, after enquiry came and told that her suit had been dismissed. Immediately she took steps for getting the suit restored.

(3.) When the trial court held an enquiry, the son of the plaintiff, i.e., Sathyanarayana S Rao adduced evidence as PW1 and marked 21 documents, Exs. P1 to P21. The first respondent adduced evidence as RW1 and got marked one document as per Ex. R1. After appreciating the evidence, the trial court came to conclusion that the reasons given by the plaintiff regarding her illness cannot be believed. The documents that were produced by PW1 to prove his mother's illness did not establish the fact that on 5.2.1996 she was not in a position to come to court. Ex.P7 is of no assistance to show that the original plaintiff was suffering from serious health issues. It is observed that Exs. P3, P4 and P5 indicate that the petitioner took treatment on 6.7.1994, 18.7.1994, 1.8.1994, 17.8.1994 and 3.9.1994 as an out patient. Since these documents were of the year 1994 and that they did not pertain to the relevant period, i.e., for Feb. 1996, they cannot be considered to hold that the plaintiff was really unwell on 5.2.1996 or during the period in and around that date. With regard to Ex.P6, it is held by the trial court that the plaintiff took treatment as an out patient on 12.1.1995. The other documents Exs. P8 to P19 show that the petitioner took treatment at Manipal Hospital as an inpatient from 20.5.1996 to 31.5.1996 for her severe low back ache and these documents also do not pertain to the period of dismissal of the suit. With regard to Ex.P7 it is held that it is a medical certificate issued by a doctor who was running a clinic called Raghavendra Clinic. That document showed that the plaintiff was taking treatment in that clinic for the period 16.12.1995 to 20.5.1996. But, the said doctor has not come forward to give evidence. Referring to Ex.P2, medical certificate, issued by Dr. K.Manoj Kumar it is held by the trial court that it is not the case of the plaintiff that she was also taking treatment from doctor K.Manoj Kumar when she was taking treatment at Raghavendra Clinic. There is no explanation from the petitioner as to why she took treatment at Raghavendra Clinic at the same time when she was taking treatment from one Dr. Manoj Kumar. Thus, the trial court has disbelieved these documents. Added to this the trial court refers to an answer given by PW2 Dr.K.Manoj Kumar to come to conclusion that the plaintiff did not have impediment to meet her advocate. Therefore, the trial court is of the opinion that the petitioners in the miscellaneous petition failed to place before the court sufficient cause for non-appearance of original plaintiff on 5.2.1996.