High Court Karnataka High Court

Sri H M Ujjappa vs Smt Rathnamma on 3 November, 2010

Karnataka High Court
Sri H M Ujjappa vs Smt Rathnamma on 3 November, 2010
Author: H.Billappa
_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.