DATED

04.06.2016

PASSED

IN

MISCELLANEOUS PETITION NO.167/2012 ON THE FILE OF THE

XIV ADDL. CITY CIVIL JUDGE, BENGALURU (CCH NO.28),

ALLOWING THE PETITION FILED U/O 9 RULE 13 OF CPC.

THIS PETITION, COMING ON FOR HEARING, THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed by the petitioner-plaintiff under

Section 115 of CPC challenging the order dated 4.6.2016

passed by the XIV Addl. City Civil Judge, Bengaluru in

Misc. Petition No.167/2012, whereby the Trial Court has

allowed the said petition.

The plaintiff had filed the suit for recovery of money

with 18% interest p.a. On service of summons to

defendants, defendants appeared through counsel but

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they have not filed written statement. Inspite of giving

several opportunities, defendants have not examined any

witnesses. On the basis of the materials available on

record, the Trial Court has decreed the suit by judgment

and decree dated 16.9.2011. After six months from the

date of judgment and decree of the Trial Court, the

defendants have filed Misc.Petition.No.167/2012 under

Order 9 Rule 13 of CPC. Along with the petition, they have

also filed an application under Section 5 of the Limitation

Act seeking for condonation of delay in filing the petition.

The order sheet of the Misc.Petition does not reflect any

order passed on application filed for condoning the delay.

The Trial Court by impugned order dated 4.6.2016 has

allowed the Misc.Petition and restored the suit. Being

aggrieved by the same, the plaintiff is before this Court.

The learned counsel for the petitioner-plaintiff has

contended that inspite of giving several opportunities by

the Trial Court, the defendants have not filed written

statement and they have not examined any witnesses. The

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Trial Court has decided the matter on merits and decreed

the suit. It is not an exparte order. The petition filed by

the defendants under Order 9 Rule 13 of CPC is not

maintainable. He further contended that there is delay in

filing the Misc.Petition. Even though the defendants have

filed application for condonation of delay, the Trial Court

has not passed order on the said application. Without

condoning the delay in filing the petition, the impugned

order passed by the Trial Court is without jurisdiction.

Hence, he sought for allowing the petition.

4.

Inspite of service of notice by this Court, the

respondents-defendants have not been represented.

5.

Heard the learned counsel for the petitioner and

perused the impugned order passed by the Trial Court.

6.

It is not in dispute that the petitioner-plaintiff had

filed the suit for recover of money of Rs.11,34,568/- with

interest of 18% p.a. After service of summons, the

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defendants have appeared through counsel. But they have

neither filed any written statement nor examined any

witness. They have not argued the case. The Trial Court

on the basis of the materials available on record has

decree the suit by judgment and decree dated 16.9.2011.

The defendants have filed Misc.Petition.No.167/2012 on

12.3.2012 i.e., after six months from the date of judgment

and decree passed by the Trial Court. There is delay in

filing

the

Misc.petition.

The

defendants

have

filed

application for condoning the delay in filing the petition.

On perusal of the order sheet of Misc.petition, it does not

disclose that delay in filing the petition has been condoned

by the Trial Court. Hence, the order dated 4.6.2016

passed by the Trial Court is without jurisdiction.

7.

Under the circumstances, this court is of the opinion

that the impugned order deserves to be set aside and

matter requires to be remanded to the Trial Court for fresh

consideration.

8.

Hence, I pass the following order:

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ORDER

a) The petition is allowed.

b) The order dated 4.6.2016 passed by the XIV Addl.

City Civil Judge, Bengaluru in Misc. Petition

No.167/2012, is set aside.

c) The matter is remanded to the Trial Court to

reconsider the petition afresh.

d) The Trial Court is directed to pa