IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4^TH DAY OF NOVEMBER 2018

BEFORE

THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

MISCELLANEOUS FIRST APPEAL NO. 393 OF 2014(CPC)

BETWEEN:

SRI. J.M. NARAYANA

@ J.M. NARAYANAPPA

S/O LATE SMT. GANGAMMA AND

SRI. MUNISWAMAPPA

AGED ABOUT 55 YEARS

RESIDING AT NO. 12, "THIRUMALA NILAYA"

1^ST CROSS, 4^TH MAIN, MUTHYALANAGARA

BANGALORE – 560 054.

... APPELLANT

(BY SRI. P.N. NANJA REDDY, ADVOCATE)

AND:

1.

SRI. R. RAMANJANAPPA

S/O LATE CHIKKARAMAIAH

AGED ABOUT 52 YEARS

R/AT NO. 161, JALAHALLI

VILLAGE, (CIRCLE), BANGALORE – 560 013.

2.

SRI. P. MUNIYAPPA

S/O PILLAPPA

AGED ABOUT 56 YEARS

R/AT NO. 152, 1^ST CROSS

1^ST MAIN ROAD, JALAHALLI

VILLAGE, BANGALORE – 560 013.

... RESPONDENTS

(BY SRI. R. VINOD PRASAD, ADVOCATE FOR R-2; R1 SERVED)

2

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43,

RULE 1(C) OF CPC, AGAINST THE ORDER DATED:18.02.2012 PASSED

IN MISC.PETITION NO.681 OF 2009 ON THE FILE OF THE 5^TH

ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE

PETITION FILED UNDER ORDER 9, RULE 4, READ WITH SECTION 151.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT

DELIVERED THE FOLLOWING:

JUDGMENT

Though this appeal is listed for admission, with the

consent of the learned counsel for the appellant and the

respondents, the appeal is taken up for final disposal.

2.

This

appeal

is

by

the

plaintiff

in

O.S.No.6194/2003 on the file of the V Additional City Civil

and Sessions Court at Bengaluru City (for short ‘learned Civil

Court’). The appellant filed the suit for permanent injunction

against the respondents, however the appellant later filed an

application for amendment to include inter alia declaratory

relief/s. This application for amendment was allowed on

12.03.2009. The appellant was called upon to file valuation

slip on 26.03.2009. But, the appellant neither filed the

valuation slip nor paid the required court fee on the relief of

3

declaration. The learned Civil Court, on 22.04.2009, rejected

the prayer for declaration on the ground that the valuation

slip was not filed. The appellant, on the next date of hearing,

viz., 25.06.2009 filed an application under Section 151 of the

Code of Civil Procedure for recall of the order dated

22.04.2009. The learned Civil Court rejected this application

as not being maintainable and further, the learned Civil Court

set down the suit for evidence at 3 ‘O’ clock. The case was

called at 3.15 p.m.; the learned Civil Court dismissed the suit

for default as neither the appellant nor her counsel was

present.

3.

The

appellant

filed

Civil

Revision

Petition

No.158/2009

impugning

the

dismissal

order

dated

25.06.2009. This Court dismissed the civil revision petition

on 8.9.2009 on the ground that it was not maintainable while

reserving liberty to the appellant to invoke the provisions of

Order IX of Code of Civil Procedure for restoration of the suit.

Thereafter, the appellant filed miscellaneous petition in

4

Misc.No.681/2009 under Order IX Rule 4 r/w. 151 of Code of

Civil Procedure for recall of the order dated 25.06.2009. This

miscellaneous petition was dismissed by the order dated

18.0.2012. The appellant challenged this order dated

18.2.2012 in a writ petition before the writ Court in

W.P.No.10483/2012. The Writ Court dismissed the writ

petition reserving liberty to the appellant to question the

impugned order dated 18.2.2012 as provided under Order

XLIII Rule 1(c) of Code of Civil Procedure. The Writ Court

observed that the time taken for disposal of the writ petition

shall stand excluded for the purposes of computation of

limitation in filing an appeal in terms of such liberty. Thus,

the present appeal is filed impugning the order dated

18.2.2012 in Misc. No.681/2009.

4.

The learned Civil Court dismissed the petition in

Misc. No.681/2009 on the ground that the suit was pendi