IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 30^TH DAY OF MARCH, 2021

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

C.R.P.NO.1041/2012

BETWEEN :

SRI M.VEERESH S/O BASAVARAJ,

AGED ABOUT 33 YEARS,

R/O 9^TH WARD DOOR NO.148,

NEW BIG MARKET, CAR STREET,

BALLARY.

... PETITIONER

(BY SRI T.M.NADAF, ADV.)

AND :

SMT.R.BHARATHIBAI,

W/O DASARATH SINGH,

AGED ABOUT 46 YEARS,

R/AT 10^TH WARD NEAR, NO.10,

MUDDAPUR AGASI, KAMPLI POST,

HOSPET TALUK, BELLARY.

... RESPONDENT

(BY SRI S.M.KALWAD, ADV.)

THIS CIVIL REVISION PETITION IS FILED UNDER SECTION

115 OF THE CODE OF CIVIL PROCEDURE PRAYING THIS COURT

TO

SET

ASIDE

THE

ORDER

DATED

24.09.2011

IN

M.C.NO.13/2008, ON THE FILE OF THE ADDL. CIVIL JUDGE AND

JMFC, HOSPET.

THIS PETITION COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT MADE THE FOLLOWING:

2

: ORDER :

The captioned civil revision petition is filed by the

plaintiff challenging the order dated 24.09.2011 passed

by the Additional Civil judge and JMFC, Hospet in Misc.

Case No.13/2008.

2.

The present petitioner filed a suit for declaration

of title and consequential relief of injunction. In the

said suit, respondent-defendant on receipt of summons

appeared

through

counsel

and

contested

the

proceedings.

3.

During pendency of the suit, it appears the

petitioner-plaintiff applied for amendment of Plaint and

the same was allowed. After the amendment of plaint it

appears respondent-defendant filed written statement

on 12.02.2004. Thereafter, the respondent-defendant

did not contest and defend the suit.

4.

The learned judge having recorded evidence of

petitioner/plaintiff proceeded to decree the suit by

judgment

and

decree

dated

07.06.2004.

The

respondent/defendant filed Miscellaneous application on

3

29.11.2008 and contended that she came to know

about the disposal of suit through her neighbor on

30.08.2008.

The

respondent/defendant

in

the

miscellaneous application has stated that thereafter,

she enquired with her lawyer who in turn informed her

that since it is old case, he need some time to search

the records and requested her to come after one

month. On her next visit, she was again asked to come

after 20 days since, clerk has misplaced the records.

5.

The respondent/defendant has further stated that

counsel whom she had engaged retired from the case

without informing her and since no Court notice was

issued to her, the passing of the decree was within her

knowledge till 30.08.2008.

6.

The Learned Judge having perused the order sheet

found that the counsel for respondent/defendant filed

memo for retirement but, however, the said counsel

retired without notifying the respondent/defendant. The

learned Judge has also observed that at para-12 of the

order that the respondent/defendant has not filed

written statement and thereby no issues were framed.

4

7.

The learned Judge has accepted the version

narrated by respondent/defendant and has come to a

conclusion that the date of knowledge has to be

computed

from

06.11.2008,

the

date

on

which

respondent/defendant obtained the certified copies.

The learned Judge by placing reliance on Section 123 of

Limitation

Act

has

come

to

conclusion

that

Miscellaneous petition filed on 28.11.2008 is within one

month and thereby petition is well within the period of

limitation.

8.

The learned Judge was of the view that by

adopting hyper technical view, petition filed under 9

rule 13 of CPC cannot be rejected. On these set of

reasons, learned Judge has allowed the petition and

consequently, suit is restored on file.

9.

Counsel

appearing

for

petitioner/respondent

assailing the correctness of the Order under challenge

would vehemently argue and contended before this

Court

that

respondent/defendant

did

contest

the

proceeds

by

filing

written

statement

and

though

sufficient opportunities were offered to defendant, she