_WV'/0.B ..R;.Shi*irappa" i
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 031") DAY OF NOVEMBER 2010
BEFORE
THE HON'BLE MRJUSTICE H.B1LLAPrjA'f
MF'A.N'o.6044/2010(CPC]
BETWEEN
Sri.I-I.M.Ujjappa
Aged about 63 years,
S/0. Manjappa
Agriculturist
R/0.Bidare Village, Nidige'HVQb1i.;"m' '
Shim0gaTa1uk, _ V AA =
Shimoga District. V ;_1..Appe1iant
[By sr1.R.s'.'i§egd:ef, Ad;;;;;
AND ' E . it
Smt. Rathrlamrfiag aged Aéibciilt 61 years
7R/0.Bi'tiaré--.'Viii'age, Nidige Hobli,
E"V"{By s1d;s.V,VV;v1-a'reaeh, Adv.)
Shimoga TaV1'L1k;,V
Shimoga ViDi,strict'Vd~ . V V . . . Respondent
_ V __ MFA is filed under order 43 rule 1 (r) of CPC,
agairist the order dated 4.6.2010 passed in M1sc.Ne.3/2008
it --j'Qn'"the file of Principal District Judge, Shimoga, dismissing
INJ
the petition filed under order 41 rule 19 R/W section 151 of
CPC to readmit the RA No.61./2005.
This MFA Corning on for admission this day, the Court
delivered the following:
J U D G M E N T
This appeal is directed against the 4_
4.6.2010, passed by the Principal District in 1 j
Mis(:.No.3/2008.
2. By the impugned ovrdter~,._ppthe”‘ Appel1a;te:~-Court has
disrnisseddiv”ltfilfxio._1 the miscellaneous
petition. There-‘fore,
3(1),. _ In the are; The appellant filed suit in
:,ii'()v..S…1\A§g”_~7€’13.]’9O’.._for ‘declaration. it was dismissed on
19,1Thehappellant preferred appeal before the
Shimoga, in R.A.No.28/1.998. It was
“”1-:l'[trai’isferredvto District Judge, Shirnoga and renumbered as
/2005.
L//.
(ii) The appellant had engaged the services of
Sri.H.Ranganatha Rao, Advocate. He left the professiolnpand
went to Bangalore. The file was
Sri. H . S . Kumaraswamy, Advocate. Heppp>appea_I:ed.–4on ‘ all
He had told the appellant that he
the case is taken up and his p1’ese_nCe is not reV:qli,iiifedVVValnd hep’
would inform the appellant abouit:’»sta.ges .o1″~the ease. The
appellant believed it and } .4 V
(iii) During_th_e last” lmejkefilber 2007, the
appellant tried. -».eou’ns_elV _Sri.H.S.KumaraswaIny
and Came Advocate, has
left Shimolgavland’Went_lllte.:fChickmagalore. Thereafter, the
appellant ..oame”t.o the appeal was dismissed for
-:1′
*lno’n –prGseei1tionA on Q2005.
llappellant was not informed about the Case
Coiisralelfhas misled him. The appellant has prayed
of delay and restoration of the appeal. The
“below holding that the appellant has failed to explain
V,
the delay, has dismissed the LA. and consequently, the misc.
petition. Therefore, this appeal.
4. The learned counsel for the appellant contended
that the impugned order cannot be sustained in law. ‘l:.?I”es.a1so
submitted that the appellant had engaged
Sri.H.Ranganatha Rao, Advocate, and he shifted.’4_:toV
and the case was entrusted
Advocate and he did not informilgthe appellant
and the appellant came to knoW_’_4_d:a-b:out_ the of the
case only during the lasvt””‘u}eek-_ 2007. He also
subrr1ittedFtha.t’ ‘t.o’be considered liberally and by
imposing reasonablle appellant may be given an
v..opport1;1’n_ityld’to contest___the matter on merits. He, therefore,
st-.1_bmitt.ed–.tha’t.._the impugned order cannot be sustained in
law. his submission, he placed reliance on the
db i _ _ ‘following decisions : —
1i;i«2o00(3} KCCR page 2302
(2) (2009) 2 sec page 116
(3) 2001(4) KLJ page 39.
5. As against this, the learned Counsel for the
respondent submitted that, the Appellate Court, Qflldpjtoper
consideration of the material on record, has rightly.’;reje!:_ted
the application and therefore, the impugned
call for interference. He also submitted eh’
failed to explain the delay and therefore” the
does not call for interference. Healso submhittedt that the suit
was filed in the year l99lQ–…gil:i’id dismissed in the
year 1998 and there’after,,a”p’peal VWas._llled,:..ir’il’ aA.No.28/ 1998
and it was,’tremsterredl’and.::re.n’umbered as R.A.N0.61/2005.
Further he su”o._niitVted_that’ tlielappellarit and his counsel were
not in proseeuting the appeal though sufficient
opportuniiyvéwastgivpen. He also submitted that the appeal has
¢:1’d26.9.2005 and the miscellaneous petition
beenlin the year 2008 and the deiay in filing the
miscellaneous petition has not been explained. He also
V’ .s_lubmpitted that, the appellant has stated in his cross
6
examination that Smt.Parvathamma died on 25.11.2005 and
he met his counsel tw0–three days thereafter and infprmed
about the death of Smt.ParVathamma which is
therefore, submitted that the impugned order
interference.
6. I have carefully considered the
by the learned counsel for the
7. The point that arises :.fQrd1rny c6ns.ide’§rati0n is,
Whether the impugned order
8. rel’e*vfant “the suit is filed in the year
1990. The decree hasap.een”_.’tpassed on l3.L W38 dismissing
the appelianthas preferred appeal in R.A.N0.28/98
beforethe Civil Judge, Shimoga. Thereafter, the
:”n.__.pv_appea3has Vbevenllltransferred to District Judge, Shimoga and
_::._p_r4entimbeIedwas4R.A.No.61/ 2005. The appellant has engaged
t_heif”sleif/ices of Sri.H.Ranganatha Rao, Advocate. Thereafter,
T. appellant has engaged the services of
V.
Sri.H.S.Kumaraswamy. Advocate and he has filed Vakalath on
8.6.2005. Several adj ournments have been given.–.'”–._ The
appellant and his counsel have not appeared.
the appeal has been dismissed for nomprosle-Qution:
nearly two years, the appellant it
bothered about the case. The appellant state–s,l..durifigl”the~cp
last week of November 2007, hell”i’tr:i’ed_to counsel
and came to know his 3. has “shifted to
Chickmagalore andpvthereafter;–.ton.V came to know
about the dismi’s§.sal:§o’fV case. lir1″‘between, right from
26.9.2005:v’tltilllll’ thétpiasiilwvéeigipi of Nldvefiqber 2007, nothing has
been donelllibythe know about his case. The
records eondu-ctlvsof the appellant indicate. the
I-‘:’a.pp’e11VaI1t. “not in prosecuting the appeal. The
learneci coui1.sel the appellant placed reliance on some
wltlecisioiis. ,__”li1.FM/s.Syndicate Bank, Shoolay Branch,
_,_lj.lii,”fia:13iga1ore’=—-Vs. M/s.Bangalore Process Equipment and
A;;¢t.i:ers’ilreported in 2000 (3) KCCR page 2302, the appeal
it has”been restored on payment of cost of K1001/– with an
L/,_
observation that the banking institutions are heavily over-
staffed and the employees are well remunerated, but the
Conduct of the cases is Very sluggish. In SI-IIV KUMAR vs.
DARSHAN KUMAR reported in (2009) 2 SCC page:
appeal is restored for the reason, the appellant_.Ajc{.<as4y
ill and he was hospitalised. }.n~~ 'V_Su.l ' 5
SHANKARAPPA reported in 20013.[4}IllpiKLJi'«.9ag¢
appeal is restored taking into eoris~ideration' should'
not suffer for the inaction :-or misd'errlCEiiiour ofhis Counsel.
9. In the present””Case,’– is not diligent
in prosecutingthvel’téa.se.._ appeal has been dismissed on
26.9.2005. not made any efforts to know
about v_»»1i:isl:__lCase l.lt’illA.,_ij_\_T__cy).vember 2007. No explanation is
to-rti1elomir1g.’~Therefore, in my considered view, the Appellate
.’lW,__.pCourt. was in rejecting the application and the
rriiseellaneous petition. Therefore, the impugned order does
for interference. There is no merit in this appeal and
H -.therefore, it is liable to be dismissed.
10. Accordingly, the appeal is dismissed.
IVIisc.Cv1.No. 10549 / 10 does not survive___ for
consideration and accordingly, it is rejected.
Ed? 2:? I _
is i v: A
Bss.