This miscellaneous first appeal is filed under Order 43, Rule 1(c) of the Civil Procedure Code, 1908 against the judgment and order dated 27-5-2009 passed in Misc. No. 593 of 2003 on the file of XXVII Additional City Civil Judge, Bangalore, dismissing the petition filed under Order 9, Rule 9 of the CPC for setting aside the dismissal order dated 9-7-2003 passed in O.S.No.8426 of 1998.

2. With the consent of the learned Counsel for the appellant as well as learned Counsel for the respondents, this matter was heard on merits. The Trial Court records were also called and I have perused the same.

3. Parties will be referred to with reference to the status in the Court below.

4. The averments made in the petition filed under Order 9, Rule 9 of the Code of Civil Procedure is as under:

The petitioner submits that she is the absolute owner in possession of the immovable property bearing No. 4/42, situated in Survey No. 113 of Lingarajapura Village, now called as Lingarajapura, VST and Sons Garden, St. Thomas Town Post, Bangalore. The petitioner and her family members have been residing in the suit schedule property since long back as absolute owners. Originally this entire land in Survey No. 113 belonged to one late Sri Tiru Venkata Swamy Mudaliar and his family and they have gifted the aforesaid land to the petitioner’s ancestors. It is submitted that Survey No.114 of Lingarajapura consists of 6 acres 17 guntas of land and out of which respondent 1Bangalore Development Authority has acquired the land measuring 2 acres 3/4th guntas in the year 1980 for formation of layout and after the acquisition, respondent 1 has sold portion of the acquired land measuring 1 acre 21/2 guntas to respondent 3. Respondent 3 has fully occupied the land measuring 1 acre 21/2 guntas of land surrounded by stone slab compound wall and also constructed godown in their land.

It is further stated that during the month of October 1998, the officials of the respondents have abruptly come to the petitioner’s property and demanded to deliver the possession of the same to them. Therefore, with no other alternative, the petitioner filed original suit in O.S.No.8426 of 1998 against the respondents for the relief of permanent injunction. The status quo order was ordered by the Court below on 2-11-1998 and it was extended from time to time. That on 30-1-2003, original suit was set down for plaintiff’s evidence and on that day, the matter was again adjourned to 9-7-2003 for plaintiff’s evidence. That on 30-1-2003, instead of noting the next date of hearing as 9-7-2003, the petitioner and her Counsel have wrongly noted down the date of hearing as 19-7-2003. It is stated that the petitioner and her Counsel noted the wrong date of hearing as 19-7-2003 and they went to the Court hall to appear in the case. On verifying the cause list, they did, not find their case number and thereafter, they have verified the ‘A’ diary in order to ascertain the date of hearing. After such verification the petitioner and her Counsel have come to know that they have noted down wrong date as 19-7-2003 instead of 9-7-2003 and on 9-7-2003 the case was called out, since none appeared on behalf of the petitioner, the Trial Court was pleased to dismiss the suit for non-prosecution. Therefore, the petitioner has filed a petition under Order 9, Rule 9 before the Court below to set aside the order of dismissal for non-prosecution.

5. The respondents 1 and 2 have filed the objection statement as under:

The averments made in the affidavit were all denied. Respondents 2 and 3 state that the suit property was duly notified and acquired for the formation of layout. Even the petitioner herself had admitted the acquisition. When the petitioner was not at all in possession, the question of interference nor handing over possession to respondents 1 and 2 by the petitioner does not arise. The petitioner with an intention to grab the BDA property has filed the original suit in O.S.No.8426 of 1998.