- 1 - NC: 2025:KHC:11144 MFA No. 4176 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17THDAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.4176 OF 2016 (CPC) BETWEEN: 1. SRI. H.L. MANJUNATH S/O SRI. L. LINGAIAH, AGED ABOUT 42 YEARS, 2. SRI. L. LINGAIAH S/O LINGEGOWDA AGED ABOUT 79 YEARS, BOTH THE APPELLANTS ARE RESIDING AT # 97, VIVEKANANDA NAGAR, KHADI COMMISSION LAYOUT KATRIGUPPE,BSK III STAGE, BANGALORE – 560085 …APPELLANTS (BY SRI. GIRISH S HEGDE, ADVOCATE; A2 ABATED V/O DATED 26.02.2024) AND: 1. SRI. N.R. PRADEEP S/O SRI.N.S.RANGEGOWDA AGED ABOUT 29 YEARS RESIDENT OF # 447, 9THMAIN ROAD, AVALAHALLI, BDA LAYOUT,BSK III STAGE BANGALORE – 560085 2. SRI. N.B.RAVEEHSIAH S/O SRI. N.B.BOARAIAH AGED ABOUT 46 YEARS RESIDENT OF # 1/1, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11144 MFA No. 4176 of 2016 1ST A CROSS ROAD, BYATARAYANAPURA NEW EXTENSION NEAR AVALAHALLI, BDA LAYOUT, LAST BUS STOP, BANGALORE – 560026. …RESPONDENTS (BY SRI. P ANAND ADVOCATEFOR R1 & R2) THIS MFA FILED U/O 43, RULE 1(c), R/W SEC 104 OF CPC, AGAINST THE ORDER DATED19.3.2016 PASSED IN MIS.CNO.457/2015 ON THE FILE OF THE 12TH ADDITIONAL CITY AND SESSIONS JUDGE, BENGALURU, DISMISSING THE PETITION FILED U/O 9, RULE 9, R/W SEC 151 OF CPC.IN TIME. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the plaintiffs in suit O.S.No.5038/2011 and petitioners in Misc. No.457/2015 challenging the order dated 19.03.2016 passed by the Court of XII Addl. City Civil Judge, Bangalore, in Misc.No.457/2015, thereby, the suit filed by the plaintiffs is dismissed for non prosecution and consequently, the petition filed by the plaintiffs under Order IX Rule 9 r/w Section 151 CPC is also dismissed. Hence, plaintiffs are before this Court in the appeal. - 3 - NC: 2025:KHC:11144 MFA No. 4176 of 2016 2. The plaintiffs have filed the suit in O.S.No.5038/2011 for the relief of declaration and for permanent injunction. The plaintiffs have given evidence as PW1. Thereafter the matter was posted for cross examination of PW1. Learned counsel for the appellants/plaintiffs submitted that plaintiffs were present for cross examination, but the defendants have taken time and therefore the reasonings given by the trial court that plaintiff/PW1 was absent for cross examination, is not correct as it is contrary to the order sheet maintained in the suit. When the suit was dismissed by the trial court, the plaintiffs were present and the matter was posted at 3.00 p.m. during the second session at the instance of the defendants and when the matter was at the second sessions at 3.00 p.m., at that time the plaintiff/PW1 was not present, but the trial court noticing that plaintiff/PW1 was continuously absent had dismissed the suit for non prosecution, is not correct approach. Therefore, prays for allowing the appeal. - 4 - NC: 2025:KHC:11144 MFA No. 4176 of 2016 3. On the other hand, learned counsel for the respondents/defendants justified the order passed by the trial court. 4. Upon considering the copies of order sheet produced, the suit is filed for declaration and permanent injunction asserting some of the rights as pleaded in the plaint. The order sheet shows that the plaintiff/PW1 has completed the examination-in-chief, then the matter was posted for cross-examination of PW1. The defendants had sought for an adjournment. Also once the matter referred to mediation, the matter was not settled. In the mediation the plaintiff/PW1 was present. The order sheet shows that it is at the instance of defendants the matter was being adjourned. Therefore, only on one or two dates when the plaintiff/PW1 was absent, dismissing the suit itself for non prosecution is not correct. The plaintiffs have filed suit for declaration. The trial court on an application filed under Order 9 Rule 9 of CPC ought to have considered the petition magnanimously, but dismissed the claim petition - 5 - NC: 2025:KHC:11144 MFA No. 4176 of 2016 resulting into curtailing the rights of the plaintiffs to establish their case. Therefore, the Court is of the opinion to restore the suit on its own by setting aside the order of dismissal of the suit for non prosecution and dismissal of the miscellaneous petition. In order to give one more opportunity to the plaintiffs to establish their case, the appeal is allowed and matter is remanded to the trial court for considering the case in accordance with law and the impugned orders are liable to be set aside. 5. For the reasons aforestated, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The order dated 19.03.2016 passed by the Court of XII Addl. City Civil Judge, Bangalore, in Misc.No.457/2015 dismissing the miscellaneous petition, is set aside. Consequently, the order dated 09.06.2015 passed by the Court of City Civil and Sessions Judge, Bangalore, in O.S.No.5038/2011, is also set aside. - 6 - NC: 2025:KHC:11144 MFA No. 4176 of 2016 (iii) The suit O.S.No.5038/2011 is restored and remanded to trial court for fresh consideration. (iv) Since the suit is of the year 2005, both the plaintiffs and defendants shall cooperate with the trial court for early disposal of the suit. (v) The trial court shall dispose of the case as early as possible within a period of 1½ year from the date of receipt of copy of this order. (vi) If the trial court is of the opinion that either plaintiffs or defendants are seeking unnecessary adjournment without genuine reason, the trial court is at liberty to impose the costs on both the parties who seek unnecessary adjournment. (vii) No order as to costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 47