In matters of suit restoration, courts should prioritize justice and merits over default while ensuring adequate compensation for the opposing party's hardships.

ORDER :

V SRISHANANDA, J.

1. Heard Sri. H. Kantharaja, learned senior counsel for Sri. H.K. Kenchegowda, learned counsel for the revision petitioner and Smt. Hemalathan Mahishi, learned counsel for the respondents No.1 and 2.

2. Defendant is the revision petitioner challenging the restoration of the suit by allowing the Misc. No.6/2021 filed under Order IX Rule 9 of Code of Civil Procedure for restoration of the suit in O.S.No.1200/2009 which was dismissed for non prosecution by Order dated 19.02.2021.

3. Facts in the nutshell which are utmost necessary for disposal of the present revision petitioner as under:

3.1 A suit came to be filed before the Civil Judge (Senior Division), Bengaluru District which was re-numbered after the vacation as O.S. No.1200/2009 with the following reliefs in respect of the following properties (hereinafter referred to as the 'suit property')

PRAYER

WHEREFORE, the plaintiffs most respectfully pray that this Hon'ble court be pleased to pass judgement and decree for :-

(a) Partition and separate possession of plaintiff's 1/6th share each in the schedule properties by metes and bounds holding that the will dated 19/8/2005 alleged to have been executed by the Araledibbada Thimmaiah in relation to the schedule properties is not binding on the plaintiffs.,

(b) Award mesne profits from the date of suit till the date of handing over of possession of the plaintiff's share by metes and bounds,

(c) Grant such other and further relief as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity.

SCHEDULE

All that piece and parcel of agricultural land measuring 3 acres 19 guntas (including the kharab of 20 guntas), in Sy.No.81/3A, of Thotadaguddadahalli village, Dasanapura hobli, Bangalore north taluk, and bounded on the East by: Land of Narasimhaiah, West by: Road, North by: Land of Thigalara Ganganna, South by: Lands of Rangappa, Bylappa and llanumanthappa.

3.2 The suit for partition after institution, was being contested in view of the written statement filed by the defendant and issues came to be framed by the Trial Court on 27.01.2012.

3.3 Despite granting sufficient time, plaintiff did not appear before the Court. Therefore left with no alternative learned Trial Judge dismissed the suit for non prosecution by Order dated 19.02.2021.

3.4 The plaintiff filed an application under Order IX Rule 9 of the Code of Civil Procedure which was registered as Miscellaneous No.6/2021 seeking to set-aside the dismissal of the suit for non prosecution. Said Miscellaneous petition was numbered as Miscellaneous Case No.6/2021 and was contested by the defendant. 3.5 Learned Trial Judge recorded the evidence of the parties wherein the plaintiffs contended that the suit could not be proceeded diligently on account of the ill- health suffered by the plaintiff and therefore, sought for restoration.

3.6 The same was opposed by the defendant by not only cross-examining the witness but also demonstrated that the alleged ill-health did not come in the way of the participation of the plaintiff in the suit.

3.7 Learned Trial Judge after taking note of the rival contentions of the parties, in view of the settled principles of law that such petitions must be dealt in liberal manner, allowed the petition by imposing the cost of Rs.5,000/- by Order dated 04.01.2024.

4. The veracity of the said Order is called in question in this revision on the following grounds:

That the impugned Order dt:04.01.2024 in Misc. Petition No.06/2021 passed by the learned II Addl. Senior Civil Judge and JMFC, Nelamangala, Bangalore Rural District, at Annexure-N is, contrary to law, perv