IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 10^TH DAY OF MARCH, 2021

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

C.R.P.NO.100002/2019

BETWEEN

PARASHURAM S/O SHAMRAO PATIL

AGE: 82 YEARS, OCC: RETIRED,

R/O: 175, BASAWAN GALLI,

DESUR, TQ: AND DIST: BELAGAVI.

...PETITIONER

(BY SRI. S B HEBBALLI, ADV.)

AND

SHIVANAND GANGAPPA KUMBAR

AGE: 51 YEARS, OCC: AGRICULTURE,

R/O: 176/1B, BASAWAN GALLI,

DESUR, TQ: AND DIST: BELAGAVI.

…RESPONDENT

THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING TO

SET ASIDE THE ORDER DATED 27.09.2018 IN MISC.NO.15/2016

PASSED BY THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE AND

CHIEF JUDICIAL MAGISTRATE, BELAGAVI AND FURTHER ALLOW THE

PETITION AND RESTORE THE PETITIN FILED BY THE PETITIONER ON

THE FILE OF COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND

CHIEF JUDICIAL MAGISTRATE, BELAGAVI IN THE INTEREST OF

JUSTICE AND EQUITY.

THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE

COURT MADE THE FOLLOWING:

2

: ORDER :

This revision petition is filed challenging the order

passed in Misc.No.15/2016 passed by the Appellate

Court.

2.

The respondents filed a suit in OS No.324/2012.

The said suit was dismissed on 15.04.2014. Being

aggrieved by the same, respondent/plaintiff preferred

an appeal in RA No.96/2014. However, the present

petitioner did not choose to contest the proceedings on

the ground that he was seriously ill on account of old

age and he was under medical treatment at Lakeview

Hospital. The Appellate Court allowed the appeal by

judgment and decree dated 15.04.2014. The petitioner

has filed an application under Order 9 Rule 13 r/w

Section 151 CPC seeking to set aside the judgment and

decree passed by the Appellate Court in RA No.96/2014.

The Appellate Court heard the matter on maintainability

on miscellaneous application. The Appellate Court has

dismissed the miscellaneous application not only on the

ground of maintainability but also on the ground that

the petitioner was duly served with notice before

3

Appellate Court. The Appellate Court has also indicated

the reasons pleaded by the petitioner that he was

seriously ill and he was taking treatment at Lakeview

Hospital. Then also Appellate Court has rejected the

appeal.

Being

aggrieved

by

the

said

order

the

petitioner is before this Court.

3.

Heard the learned counsel for the parties and

perused the order under challenge.

4.

The Appellate Court has decided the appeal on

merits and by judgment and decree dated 15.04.2014

has allowed the appeal filed by the respondent in RA

No.96/2014. Against the judgment and decree passed

in appeal under Section 96 R/W Order 41, Rule 1of CPC,

the question that would arise before this Court is

whether petitioner/defendant can seek setting aside of

Judgment and decree passed by Appellate Court by

invoking the provisions of Order 9 Rule 13 of CPC.

5.

On perusal of the provisions of Order 9 of CPC, it

is clearly evident that the same provides for appearance

of the parties and also contemplates consequence of

4

non-appearance during the pendency of the suit. If the

party fails to appear in a suit, then the consequence

would follow and the Trial Court before whom the suit is

pending has to place a party exparte and thereafter,

proceed with the suit. Therefore, it is quite obvious

that any proceedings that is referred to Order 9 of CPC,

the same refers to the pending suit and does not

include the proceedings before the Appellate Court. On

a bare reading of the provisions of Order 9, it also

indicates that it is incumbent and mandatory for a

litigant to appear before the Court on each and every

date during trial. However, the requirements under

Order 9 cannot be extended to appellate proceedings

pending under Section 96 of CPC. The presence of a

litigant before the Appellate Court is not compulsory,

unless situation warrants where the Appellate Court

o