In the High Court of Karnataka Dharwad Bench
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 16 TH DAY OF OCTOBER, 2020 BEFORE THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY CIVIL REVISION PETITION NO.100047/2014 BETWEEN : 1. Shri. Jabbarali S/o. Mustafa Halasgi, Age about 54 years, Occ: Agriculture, R/o. Chunchwad, Tq. Khanapur, Dist. Belgaum. 2. Shri. Mashallaha S/o. Mustafa Halasgi, Aged about 52 years, Occ: Agriculture, R/o. Chunchwad, Tq. Khanapur, Dist. Belgaum. 3. Shri. Hashamasab S/o. Mustafa Halasgi, Aged about 44 years, Occ: Agriculture, R/o. Chunchwad, Tq. Khanapur, Dist. Belgaum. ... Petitioners (By Sri. Mallikarjunswamy B. Hiremath, Advocate) AND: 1. Smt. Chandbi W/o. Mahabbobsab Hulikatti, Aged about 64 years, Occ: Household work, R/o. Haliyal, Dist. Karwar. 2. Smt. Jamelbi W/o. Mahommad Yakub Puranigalli, CRP No.100047/2014 : 2 : Aged about 57 years, Occ: Household, R/o. Haliyal, Dist. Karwar. 3. Smt. Jannatabi W/o. Alimsab Khazi, Aged about 54 years, Occ: Agriculture & Household, R/o. Chunchwad, Taluk : Khanapur,. Dist. Belgaum. 4. Smt. Fatimabi W/o. Abdul Rehman Haragi, Aged about 49 years, Occ: Household, R/o. Khanapur, Dist. Belgaum. 5. Smt. Bibijan W/o. Masha Allaha Halasagi, Aged about 47 years, Occ: Household, R/o. Chunchwad, Taluk Khanapur, Dist. Belgaum. 6. Shri. Mustafa Hasansab Halasgi, Since deceased by his L.R. Smt. Mahaboobi W/o. Abdul Wahab Latifnavar, Aged about 58 years, Occ: Household, R/o. Kasab Galli, Haliyal, Dist. Karwar. ...Respondents (By Sri. Ashok A. Naik and Sri. R.S.Kittur, Advocates for R1 to R5; Notice to R6 dispensed with) --- This CRP is filed under Section 115 of CPC, against the order dated 01.04.2014 passed in Civil Misc. No.3/2011 on the file of the Senior Civil Judge & JMFC, at Khanapur, allowing the petition filed under Order 9 Rule 9 of CPC. CRP No.100047/2014 : 3 : This petition coming on for Admission through physical hearing/video conferencing hearing this day, the court made the following: ORDER The present respondent Nos.1 to 5 herein had filed a suit in O.S.No.120/2008 in the Court of the learned Senior Civil Judge & JMFC, Khanapur (for brevity hereinafter referred to as ‘the trial Court’) for the relief of partition and separate possession of their alleged share in the suit schedule properties. 2. When the suit was posted for evidence, the plaintiffs alleged to have failed to appear either by themselves or through their counsel, as such, the trial Court dismissed the suit for default on 25.11.2010. On the next date i.e. on 26.11.2010, the plaintiffs filed an application seeking recalling of the order dated 25.11.2010. The trial Court by its order dated 31.01.2011 dismissed the said application as not maintainable, however, held that the plaintiffs have to CRP No.100047/2014 : 4 : file a separate petition for the relief they have sought for. Accordingly, the plaintiffs who are the respondent Nos.1 to 5 herein filed a petition under Order IX Rule 9 of Code of Civil Procedure (CPC), seeking the restoration of the suit on 08.08.2011. Since there was a delay of more than six months, they also filed an application under Section 5 of the Limitation Act, seeking condonation of delay. The said Miscellaneous Petition which was numbered as Civil Miscellaneous No.3/2011 was contested from both side. The trial Court by its order dated 01.04.2014 allowed the said Civil Miscellaneous No.3/2011 and also I.A.No.1 filed under Section 5 of the Limitation Act. It is the said order the defendants in the original suit who are the petitioners herein have challenged in the present petition. 3. Respondent Nos.1 to 5 are being represented by their counsel. CRP No.100047/2014 : 5 : 4. Though the matter is listed for Admission , however, with the consent from both side, the matter is taken up for its final disposal. 5. Heard the arguments from the learned counsels who are physically present in the Court. Perused the materials placed before this Court. 6. It is an undisputed fact that, the present petitioners were the defendants in O.S.No.120/2008 against whom the present respondent Nos.1 to 5 had filed a suit for the relief of partition. Admittedly, the said suit came to be dismissed for non-prosecution on 25.11.2010. At the initial stage, the plaintiffs appeared to be diligent since they filed the application seeking for recalling the order of dismissal on the very next day of the order i.e. 26.11.2010. However, after the dismissal of the said application on 31.01.2011, it appears that the plaintiffs did not evince any interest in filing a civil CRP No.100047/2014 : 6 : miscellaneous petition under Order IX Rule 9 of CPC for quite some time, and ultimately they filed the said petition after six months one week of the dismissal of their earlier application for the same relief. It is highlighting this point the learned counsel for the petitioners submits that, the trial Court ought not to have allowed the said application and also the application in view of the delay caused by the plaintiffs for no valid reasons. The learned counsel for the petitioners also submits that, the trial Court before allowing the application should have disposed of I.A.No.1 filed under Section 5 of the Limitation Act and only after allowing the said application by condoning the delay ought to have proceeded to consider the main petition on merit. Contrary to the same, in the instant case, the trial Court in its single order has first allowed the petition and thereafter I.A.No.1. CRP No.100047/2014 : 7 : 7. A perusal of the impugned order go to show that, the trial Court has considered both I.A.No.1 filed under Section 5 of the Limitation Act, as well, the petition filed under Order IX Rule 9 of CPC in a common order dated 01.04.2014. It has discussed the alleged sufficient cause shown by the applicants explaining the delay and also the merit of the petition under Order IX Rule 9 of CPC. However, in the operative portion of the order it has first mentioned about allowing of the petition and in the second sentence it has mentioned about allowing of the I.A.No.1 filed under Section 5 of the Limitation Act. By that it cannot be held that the impugned order loses its validity or sanctity. As such, the argument of the learned counsel for the petitioner on the said aspect is not acceptable. 8. A perusal of the impugned order would go to show that, the plaintiffs/applicants have explained the reason for the delay giving the medical reasons and CRP No.100047/2014 : 8 : alleged ill-health. The Court has noticed the same and also has noticed the changes of their counsels made by the plaintiffs in the original suit. So, considering that the reason for the delay was genuine and also the plaintiffs were diligent at the first instance who had made an application to recall the order on the very next day of the order of dismissal of the suit, opined that the sufficient cause for condonation of delay was shown as well for allowing the petition filed under Order IX Rule 9 of CPC. Considering the nature of the suit between the parties which was one for partition and separate possession and also of the act of the plaintiffs in filing a recalling application on 26.11.2010 i.e. on the very next day of the dismissal of the suit for default which was on 25.11.2010, and also the explanation given with regard to the delay caused in filing the Civil Miscellaneous Petition, I am of the view that, the trial Court has rightly CRP No.100047/2014 : 9 : appreciated the reasons and condoned the delay in filing the Civil Miscellaneous No.3/2011 and also allowed the Civil Miscellaneous No.3/2011, I do not find any reasons to interfere in it. 9. Accordingly, I proceed to pass the following order: ORDER The Civil Revision Petition stands dismissed. Sd/- JUDGE *Svh/- .