The petitioner who is the plaintiff has preferred this

civil revision petition assailing the order dated 03.06.2019

passed in M.A.No.8/2017 on the file of I Addl. Senior Civil

Judge, Gokak confirming the order dated 01.03.2016

passed in Civil Misc.No.12/2014 on the file of the Civil

Judge and JMFC, Mudalagi whereby the appeal filed under

Order 43 Rule 1 of C.P.C. by the plaintiff to restore

O.S.No.337/2010 was rejected.

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The parties herein are referred to as per their

ranking before the Trial Court for the sake of convenience.

The petitioner/plaintiff filed O.S.No.337/2010 on

the file of the Prl. Civil Judge, Gokak seeking relief of

declaration, partition and separate possession of his

legitimate right in the suit schedule property. When the

matter was posted for plaintiff’s evidence on 21.03.2013,

the case was called out, the plaintiff remained absent and

the matter was adjourned to 31.05.2013. On 31.05.2013,

the plaintiff again chose to remain absent and the matter

was posted to 21.09.2013. On the intervening day, the

Trial Court dismissed the suit of the plaintiff for non-

prosecution.

Aggrieved by the dismissal of the suit for non-

prosecution,

the

petitioner/plaintiff

filed

Civil

Misc.No.22/2013 under Order 9 Rule 4 read with Section

151 of CPC with a prayer to restore the suit and set-aside

the order of dismissal for default. It is stated in the

petition filed for restoration that the petitioner was not

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keeping good health and the doctor had advised him to

take rest from 18.09.2013 to 20.09.2013 and during the

said interregnum, he could not appear before the Court for

leading his evidence and stated that the non-appearance

of the petitioner is neither intentional nor deliberate and

the petitioner has not appeared on 21.09.2013 due to

reasonable cause and sought to recall the order of

dismissal.

5.

The Trial Court, without considering the medical

certificate and the cause shown by the petitioner in the

affidavit, rejected the miscellaneous application vide order

dated 01.03.2016.

6.

Aggrieved by which, the petitioner/plaintiff

preferred an appeal in M.A.No.8/2017 under Order 43 Rule

1 CPC. The Appellate Court dismissed the appeal

confirming the order passed by the Trial Court in Civil

Misc. No.12/2013 on the ground that miscellaneous appeal

filed under Order 43 Rule 1 is not maintainable since the

application filed by the petitioner is under Order 9 Rule 4

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CPC and rejected the miscellaneous appeal. Aggrieved by

which, the petitioner/plaintiff is before this Court.

7.

Heard the learned counsel for petitioner and

learned counsel for respondent.

8.

Learned counsel for petitioner would submit

that the impugned orders passed by the Trial Court and

confirmed by the Appellate Court is not justifiable for the

reason that both the Courts have not taken into

consideration the medical certificate produced by the

petitioner

which

has

been

issued

by

the

Medical

Practitioner certifying that during the interregnum period

from 18.09.2013 to 20.09.2013, the petitioner was unwell

and he was suffering from “right hand tingling sensation

and pain from 18.09.2013 to 20.09.2013” and as such, he

could not have attended the Court to lead his evidence on

21.09.2013. The Trial Court on hyper technical ground,

dismissed the suit and confirmed the order of dismissal of

the suit for non-prosecution without even considering the

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plaintiff’s legitimate rights have been involved in respect of

the properties and dismissed the application.

9.

The First appellate Court on a hyper-technical

ground held that appeal under Order 43 Rule 1 of CPC is

not maintainable against the order of dismissal of petition

under Order 9 Rule 4 of CPC and would contend that the

orders of the Courts below suffers from legal error and

warrants interference of this Court and sought to allow the

petition.

10. Per contra, learned counsel for respondent

Nos.1 and 4 would justify the order passed by the Trial

Court and would contend tha