The petitioner being the plaintiff in O.S.No.28/2006

on the file of the Principal Civil Judge and JMFC, Hosadurga

(henceforth referred to as 'Trial Court' for short), has

challenged an order dated 24.02.2010, by which the suit

was dismissed for non-prosecution. He has also challenged

an order dated 21.08.2015 passed by the Trial Court in

C.Mis.Petition.Unnumbered/2014, by which an application

under Order IX Rule 9 of Code of Civil Procedure, 1908,

(henceforth referred to as 'CPC' for short) to restore the

suit was rejected. The petitioner has also challenged the

order dated 25.08.2016 passed in M.A.No.7/2016 by the

Senior Civil Judge (Jr. Dn.) and JMFC, Hosadurga.

The parties shall henceforth referred to as they

were arrayed before the Trial Court.

4

The plaintiff filed a suit for declaration that he

is the owner in possession and enjoyment of the suit

schedule properties and also sought for a declaration that

the sale deed in favour of the defendant No.1 was nominal

as it was for the purpose of securing a hand loan borrowed

from him.

4.

The suit was contested by the defendants. On

an application filed by the plaintiff to amend the plaint, he

was permitted to do so. However, on 24.02.2010, the

plaintiff could not appear before the Court as he was

allegedly unwell and could not intimate his counsel. His

counsel was also engaged in another Court and could not

attend the suit. Hence, the suit was dismissed for default

on 24.02.2010.

5.

The plaintiff alleged that he came to know of

the dismissal of the suit on 28.12.2013 and hence, filed

C.Mis.Petition.Unnumbered/2014 for restoration of the

suit. Along with the Miscellaneous Petition, an application

under Section 5 of the Limitation Act, 1963, was filed for

5

condonation of delay. The plaintiff claimed in the affidavit

that he hailed from a rural background and from a poor

family and was unaware of the procedures in the Court.

He also claimed that he was not alert and could not

enquire about the case from his counsel. The plaintiff was

examined in support of the contentions urged in the

application for condonation of delay. The Trial Court

rejected the application in terms of its order dated

21.08.2015. The plaintiff thereafter, filed M.A.No.7/2016,

which too was rejected on 25.08.2016.

6.

Being aggrieved by the aforesaid orders, the

plaintiff has filed this writ petition.

7.

The learned counsel for petitioner/plaintiff

submitted that plaintiff had sought for declaratory reliefs,

which were substantial in nature. He submitted that the

suit was set down on 15.02.2010 for carrying out

amendment

of

the

plaint

and

was

adjourned

to

24.02.2010. He submitted that if the plaintiff or his

counsel did not appear on the said date, the Trial Court

6

must have rejected the amendment that was allowed and

not the suit in its entirety. He claimed that the stage, for

which the suit was adjourned to, did not warrant dismissal

of the suit. He relied upon the provisions of Order XVII

Rule 2 of CPC and claimed that the Trial Court was not

justified in dismissing the suit. He further contended that

the application for condonation of delay filed to restore the

suit was not liberally construed by the Trial Court.

8.

Per contra, the learned counsel for the

respondent Nos.1 (a to e) and 3/defendant Nos.1 and 3

submitted that the father of the plaintiff had executed a

sale deed in favour of the defendants on 26.05.1978 and

the suit is filed in the year 2006 for cancellation of the said

sale deed. He claimed that the plaintiff was not diligent in

pursuing the suit and therefore, the Trial Court was

justified in dismissing the suit for non-prosecution.

9.

I have considered the submissions made by

the learned counsel for the parties.

7

10.

It is seen from the order sheet placed on

record that the plaintiff was required to amend the plaint

and a final chance was given to do so by 15.02.2010.

Even on 15.02.2010, an opportunity was granted to amend

the plaint by 20.02.2010. On 20.02.2010, the case wa