IN THE HIGH COURT OF KARNATAKA. BANGALORE
DATED THIS THE 20"' DAY OF NOVEMBER
BEFORE
THE I-ION'BLE MR. JUSTICE.,.$UBI:'iAS'Ii'E.*. _ O' 'V
M.F.A. No. 7223 of;"'30'?)5A~-§C'I3CV1"' A
BETWEEN:
1 DEBASHISH SEAMAL§«" ' I' A
SON OF U B SYA1~A'A.L,--. A{3E{)N{AJQR
RESIDENT AT NO 148, 'f4'I"H
DEFENCE coL0N":',.LI§!Ai,.':2.,ND STAGE
BANG£d;C}R':"C--560 008 'A "
REP. -BY DULY .C0--NSf7I*I'1"UTED
GPA H(;L_DER A. No.2.
2 [MRS EBQ_NN}'{E QHQSH SYAMAL
*W1EE OF.DEB_ASIjIiSH SYAMAL
AGED MAJOR
RES:I>INT*A'1'A.NQ"1;4S, 4TH MAIN
_ _ DEE"EN_cE,c0LoNY, HAL 2ND STAGE
EANGALoRE--5+30 O08
. '-:3 _MIS.S"HASHI GHOSH
A. v'D_A'i}C:HT"ER OF S.C.GHOSH
« 'AG~E:;.MAJOR
RESIDENT AT NO 148, 4TH MAIN
DEFENCE COLONY, HAL 2ND STAGE
'~ _EANGALORE--560 008
REP. BY THE: DULY CONSTITUTED
GPA HOLDER - APPELLANT No.2.
APPELLANTS
O {BY SR1. AJESH KUMAR, ADV. FOR
M/S. AKS LAW ASSOCEATES, ADVS.)
1 RVENKATESH
S/O LATE N.R. RAJU
AGED MAJOR
RESIDING AT ARUNODHAYA ESTATE " .
KUDREGUDI POST, KOPPA TALUK, ~ .. ._
CHIKMAGALUR DISTRICT-""' ..
2 SUMATHI KUMAR
WIFE OF T G KUMAR:
AGED MAJOR I
RESIDING AT # 407, 6TH.._IVLA_IN *
IST CROSS, II STAGE"-. "
BANGALORE-5650008
" RESPONDENTS
{BY M /8.: CARIAPPA;_'AN'D:VCQ'.';~tADV'. FOR R1,
R2-- SI5:R"gIICE 'OF NOTICE DISRENSED WITH I
'43 R1 (c) OF CPC AGAINST
THE ORDER 'iDT_ '~._1'8.1II_.2'004 PASSED IN MIS.
NO.1514.7'/1999'-_VON 'FILE OF THE IV ADDLCITY
CIVIL JUDGE;':_'~._MAYQ1--~IALL UNIT, BANGALORE,
DISMISSING THE "PETITION FILED BY THE APPELLANTS
HEREIN U70' 9 OF CPC FOR SETTING ASIDE THE
ORDERS DT." ~1._7,7.1999 DESMISSING OS NO.10430/1996
" _ ON 'THE FILE OFTHE CITY CIVIL COURT, BANGALORE.
A " V T_ A. COMING ON FOR ADMISSION THIS DAY,
' THE COU.R'1'~ DELIVERED THE FOLLOWING»
JUDGMENT
.. is plaintiffs’ appeal against the Order dated
M ‘._ 1’8;1A1.2OO4 in MISC. NO. 15147 Of 1999 passed by the IV
V’ ” “Additional City Civii Judge, Mayo Hal} Unit, Bangalore.
r%r«I~f,;/;–
2] The said. Miscellaneous under Order IX Rule
9 of CPC was filed against the respondents forVr’.setting
aside the order of dismissal of suit
in o.s. No.10-430/1996 on they file
Court, Bangalore.
3) The suit in o.sj No. 1021936; l9&16’wfasV filledlforlil’
mandatory injunction direyc_ti:ng_ the Nos. 1
and 2 to execute favour of the
plaintiffs in respect of and to
sign and. for obtaining
Incoirie Section 269 of the Income
Tax vsu’brfii’t » same before the appropriate
authority in No.37 and also for permanent
.9 i’n_ii1n._ction:’restraining Defendants I & 2 or anybody
‘-cla.iming”_”through, under or in trust for them, in any
maiiner, alienating the suit schedule property,
2 hand’ also not to change the nature or character of the
said property in any manner.
4} The Order Sheet of the Trial Court reveals
that, on 17.07.1999, when the case was taken up for
If
in
consideration, the plaintiffs’ advocate was not ready for
adducing evidence exparte and he was not interested in
presenting the case finally. Even, neither the Vplraiiztiffs
nor their counsel appeared before’
23.06.1999, 13.97.1999 and _i7.07.,~1v999j.«1v.Hbw¢v§;i,iVV,dl”r–
they adduced their evidence way,.:’of’.anf
examination-in-chief. F’urthe;f, it is. manii’est..ifrqrnsorderf
sheet of the Trial Court thy_&1_t,;V:’eyeVn in hdspidte the trial
Court giving sufficiendt–.oppiotftuniity” to the plaintiff,
neither the pl_a§intiffs'”noz’:,thceir:’vscou,11s:el’itappeared before
the thatfground alone the Trial
Judged’ -dismissed.’ V for non–prosecution.
5] .ag.ai:n_st”””lVthe dismissal of the suit,
Miscellaneous'”No;'”Vl5l47/1999 was filed for setting
of dismissal of the suit. The only ground
urged the Miscellaneous Court was that, the
Amattderfdiwas under negotiation for settlement, as such,
-,,V’ei.th=er the plaintiffs or their counsel did not appear
d V. .. ..’t)efore the Court. The said fact is not proved even in the
evidence led in the Miscellaneous case and the plaintiffs
did not speak about the settiement, in turn, he alleged
that there were some talks about the settlementtudfppthe
dispute, as such, the plaintiffs did not
Court to make submissions. This expla1;»atii0n”‘wa.s
accepted by the Misceilaneotis
I201: if
opinion, that the Court bellow has
the said explanation of thellplairitiffs aiidhcontsequently
rejected the Misce11ar1eiJus’–Case. if
6) EVenp:y1the:=case–:bf ‘the’-iplaintiffs in the suit is,
they were defendants and they paid
substantialxf;”–‘am:6un’t..fi”ti)– the defendants on the
understariding” that» Jdefendants will execute an
agreement (5f«.sa1e, and having failed to execute an
.A :agreen1eii–i’::O~f sale, they filed the suit.
7} there is any document on record
xevidencing any agreement of sale nor any material
–,,fevid’encing the alleged oral agreement. The plaintiffs
V. _..c1airn that they were tenants under the defendants and
that they made some payment. Admittedly. there is no
agreement nor this suit is for specific performance of
Fa’)! ,
,r I
the alleged agreement. However, even to restore the suit,
the plaintiffs have not made out any case.
8) From the order sheet it is Clearthat.
Court granted sufficient oppojrtiinity -to ipwlaintiffs
and despite giving several
plaintiffs nor their counsel appeared befor:éi_:theV”Cou’rt.
9] Hence. there is”l”fio Vs.:;mg’Vpreciahle” ground for
setting aside the order 18.11.2004
passed in 1999 passed by
the Mayo Hall Unit,
Bangalore.
1110] of the above, 1 find no good ground
‘ .oir1t.erfe1»¢f the impugned order. Accordingly, the
Sd/-9
JUDGE
KGR*