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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 18^TH DAY OF OCTOBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

W.P.NO. 204679/2018 (GM-CPC)

BETWEEN:

SRI.ABDUL SHUKOOR

S/O GULAM RASOOL

AGE: 72 YEARS, OCC: BUSINESS

R/O TIPPU SULTAN ROAD

ANDROON QUILLA

RAICHUR.

...PETITIONER

(BY SRI,, MAHANTHESH PATIL, ADVOCATE)

AND:

1. SRI. SAMAD PASHA

S/O LATE GULAM DASTAGIR,

AGE: 54 YEARS, OCC: AGRICULTURE,

R/O H.NO.1-11-55/17A,

VENKATESHWAR COLONY,

LINGASUGUR ROAD, RAICHUR-584101.

2. THE COMMISSIONER, RAICHUR URBAN

DEVELOPMENT AUTHORITY,

DODDY COLONY, RAICHUR-5854101.

... RESPONDENTS

(BY SRI SHIVANAND PATIL, ADVOCATE FOR R1

AND NOTICE TO R2 SERVED)

R

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF

THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE

ORDER DATED: 13.11.2018 PASSED BY THE LEARNED II^ND

CIVIL JUDGE, RAICHUR, ON ORDER I.A NO. IX IN O.S.NO.

75/2016, VIDE ANNEXURE-J AND CONSEQUENTLY ALLOW THE

I.A NO IX IN O.S. NO.75/2016 PENDING ON THE FILE OF

LEARNED II^ND ADDL. CIVIL JUDGE, RAICHUR.

THIS PETITION COMING ON FOR PRL. HEARING IN ‘B’

GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Whether an application under Order IX Rule 7 of CPC

could be filed after the suit is posted for judgment is the

short question that arises for consideration in this petition

filed under Articles 226 and 227 of the Constitution of

India.

2.

The outline facts leading to the petition are as

follows:

Respondent

No.1

herein

filed

a

suit

for

declaration

and

permanent

injunction

against

the

petitioner and respondent No.2 herein in O.S.No.53/2016

before the Principal Senior Civil Judge, Raichur. This plaint

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was returned to respondent No.1/plaintiff to present the

same before the jurisdictional Court on 16.03.2016.

Respondent No.1 appears to have taken return of the

plaint on the same day and presented the same before the

Court of the Principal Civil Judge and JMFC on the same

day i.e. on 16.03.2016. The records disclose that it was

made over to the II Additional Civil Judge for disposal on

17.03.2016, but the order sheet in O.S.No.75/2016

manifests that on 16.03.2016 the learned Civil Judge

issued summons to defendant Nos.1 and 2. It is recorded

therein

that

the

summons

were

served

on

the

petitioner/defendant No.1, but he failed to appear before

the Court and was placed ex-parte and the case was

posted for further hearing from time to time and finally

posted for judgment on 18.06.2018. At that stage, the

petitioner herein (defendant No.1) filed an application

under Order IX Rule 7 read with Section 151 of CPC which

was numbered as I.A.No. IX, seeking to recall the ex-parte

order by permitting him to file vakalathnama and to

proceed with the matter. In the affidavit filed in support of

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the application the petitioner affirmed that the suit

summons were not served on him and therefore he was

unable to appear before the Court and only recently he

came to know about the presentation of the above suit

before the Court.

3.

Respondent No.1/plaintiff opposed the petition

inter alia contending that the statement made in the

affidavit that the summons were not served on him was

false. According to the plaintiff summons were duly served

on defendant No.1/petitioner as noted in the order sheet.

Further he contended that the petitioner participated in the

earlier suit namely, O.S.No.53/2015 and the learned senior

Civil Judge had directed both the parties to the suit to

appear before the jurisdictional Court on 16.03.2016.

The act of the petitioner in keeping himself away from the

Court until the conclusion of the trial and seeking

intervention in the matter only when the matter was set

down for judgment, is legally impermissible and thus

sought to dismiss the petition.

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4.

In the course of the arguments both the learned

counsel appearing for the parties appear to have relied on

certain citations in support of their respective contentions

before the trial Court, but there is no reference to these

citations