.. 1 ..
IN THE H!GH COURT OF KARKATAKA AT BANGALORE
QATED TI-{£8 THE 3151' DAY OF JULY 2008
BEFORE
THE HON'BLE MKJUSTICE 3.3. PA111. °
M.I¢'.A. No. 922 l 2003 ICPCI
BETWEEN:
Smt. Kavitha Gopal,
W/o Sri. R.Gopa1,
Aged about 38 years,
R/0 Hosamane Extcn,
Opp. FWD Quarters, '~ V j ' _
Chiliznagalur City. -- " 1 «V APPELLANT
(By S1'i.Mahes1; $1. .é..r1}}. fig
Sri.Ashok _ L
AND:
1. --
Represented b3'r--its. .. V
Ma;1a,ger,G". R_o';ad,=._ '
fi;' ~ $imt. 13.,
. W} 9." Shctty,
' B.'$:.'j_'I7:§1i1ors 85
Rcadymade Gaxmcnts.
, Resident of R.G.Road,
AA City
" sri.' Balakrishna Shctty. N,
S/0 Sri. Mahalinga Shctty,
Major,
13.3. Tailors Gr. Readymade Garments,
Resident of R. G.Road,
Chjkmagalm" City
the suit. Hence, she was also piaced exparte. The Trial Court
deemed the suit. The reason assigned for decxveeing the suit as
can be seen from paragraph 6 of the in
0.S.No.1-48/1998313 asunder: 1'
"6. The defendants are placed
absence to appear and contestmtlie .,su_it.~:'
the parties to suit are not'.s.t1'.A_A_is'sue"*on
question of law or fiscts clsi1n.;_'vThe
Manager of the plaintiff Whoiihss" Vsiirorn to
an afiidavit mitezstegi thei'i3is.iVn:.t eiverments' his
evidence. F.ccoIding"'to.:"t!ie and
the contention of defendant no. 1
is due? 'of 13-'? for which the
defendsnts' ::snd~».2 guarantom and now the
fiijst 'has«...t3ee,n--p§1t in possession of the
Iesdjgmede' 'xii? the first defendant. In
the ofA'~ce'n.test there is no reason to
.. of the plaintifl". Hence I
i " . pass the following order."
5." . f .co..sg....s.ay the Trial Court passed. an order decreeing
Ithe Jforhvxa snni of Rs.91,931/---- with costs and cuuent
"..:intei*est the rate of 14% p.a. from the date of suit till its
' reslisnfion against defendant nos. 1 to 4 'jointly and severally'.
it 6. in the Miscellaneous Application filed, it was contended
by the appellant herein that she was unable to file the written
e
....5......
statement as she was not feeling well and as she was not
informed by her Counsel about the date of hearing. Siiiejhas
contended that she took treatment at various that
Mangalore. She has further stated that it was
received notice in the execution proeeedings'..ehe 'about
the decree passed on 03.03.2001
immediate steps to file the V ixaisce' ._nan."ee.us t...Appiigg;'fiofi forth'
setting aside the ex~parte;--decreetpae$e<'1§"-» She herself
as FEW. I and pmdueed Ens; of her plea.
7. The Miscellaneous
Application on appellant herein. did not
exan1ine¥__ the her in support of her
assertion. 00 V has also held that since the
_ appellant herein" diiiivhnot file written statement, she was not
fi:IZi{'.!. I'(i'3]ief sought for setting aeide the ex-parte
hnsfe Vheani the learned Counsel for the parties and
the materials on record.
0 The court below has not considered the documents
~ eproduced 'before it. The appellant has pleaded that she was
suflerirag from iflness and was unable to attend the court and
4%
As the 4"' defendant did not fiie the Written statement, the
court has proceeded to decree the suit against the 4"'
defendant as Wei}. Looking £10111 this angle also, in
this is a fit case where an opportunity needs to be %
4&1 defendant to have her say in the matter.
10. The medical records
was ailing and hence she did steps 'to; wtitten" V
statement. The hardship. and pere3't1dice~.._to plainfifi
will be put to in {lacing the } can be mitigated
by saddligag the _'appel1at1t" ieompensate the
11. Asiieglaxde to 4 herein who have suflered
the ex-parte suit, it is to be made clear that
the ex-parte decree passed need
.i'--1:1OtVdbeVset4 :aside"as against those defendants. Hence the ex-
against respondents 2 to 4 herein remains
the ex-parte judgment and decree is set aside
as zigainst the 4% detendantrappellaxit herein. The
has to hear the costs and compensate the p}aiI1tifl~1′”‘
“”.flr.esponde11t herein for the hardship that it has to face in
pmsecuting the case agaie. In my view, a sum of Rs.6,000/—
326/
fie)
Qneeds to be awarded as costs against the appellant, payable to
the plaintiff] 1″ respondent henein in the matter.
12. In the result, I pass the fo1low1’ng:«~
O@ER
(1′) The appeal is allowed in part
(if)
allowed.
(iii)
Chikrnagalur iri 43/ against the
4″‘ defe}’30Zant¢dppe’If0ni..fmre:’it Kavitha Gopal
is set ” V 121 and
decree passed 2 to 4 herein
(defendants 1* ‘go 3)VV’rein:0:in,s”_.’sVunc1fi”ected by {his
shaft provide fresh opportunfty to
befh. :tVh.€ pmceed further in the suit in
‘ V V , v . t0:’iP£
«(z’2}’ ‘Beth fiafifes are directed 10 appear before the
.t_n’eii 000.»; on 13. 08.2008.
herein shall pay costs in a sum of
Rs.@O00/- to the plaintzfli-15’ respondent herein.
The payment of costs shall be condition precedent
4%
The misceilaneous petitiofpfiled by ‘me a;;pe:zan;
The ex-parts «. dated
03. 03. 2001 pf¢s~.sed«”wbg”V’ 2:0;-.,vt:~:”;;a’I {Sr.DrL),
for the partia’pation of the 4″‘ defendant-appellant
herein in the suit before the trial Court.
?KSfKK