- 1 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.3877 OF 2024 (CPC) BETWEEN: 1. A.LAKSHMAN RAO S/O. LATE APPAJI RAO, AGED ABOUT 63 YEARS, R/AT NEAR YELLAMMA TEMPLE, JANATHA COLONY, B.G. ROAD, HULIMAVU, BENGALURU - 560 076. 2. A. NARAYANA RAO ALIAS NANA, S/O. LATE APPAJI RAO, AGED ABOUT 60 YEARS, R/AT BEHIND VYSHNAVI TEMPLE, KRISHNA EXTENSION, B.G. ROAD, HULIMAVU, BENGALURU - 560 076. 3. A. KRISHNA RAO, S/O. LATE APPAJI RAO, AGED ABOUT 58 YEARS, R/AT SOMESHWARA LAYOUT, B.G. ROAD, HULIMAVU, BENGALURU - 560 076. 4. A. RAJESHA RAO S/O. LATE APPAJI RAO, AGED ABOUT 54 YEARS, R/AT NO. 430/1, SOMESHWARA LAYOUT, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 B.G. ROAD, HULIMAVU, BENGALURU-560 076. …APPELLANTS (BY SRI. NARAYANA BHAT M, ADVOCATE) AND: 1. A. RAMA RAO, S/O. LATE APPAJI RAO, AGED ABOUT 67 YEARS, HULIMAVU, BEGUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 076. 2. THE SOCIETY OF SISTERS OF CHARITY ST. VINCENT DE PAUL, MARILLAC CONVENT, BESIDE SREE MEENAKSH TEMPLE, BANNERUGHATTA MAIN ROAD, HULIMAVU, BENGALURU-560 076. …RESPONDENTS (BY SRI. SHRAVAN MADHAV. K.P AND SRI. DHANYA. K.S, ADVOCATES FOR C/R2; SRI. K.B. NARAYANA SWAMY, ADVOCATE FOR R1) THIS MFA IS FILED U/O.43 RULE 1(c) OF THE CPC, AGAINST THE ORDER DT.25.03.2024 PASSED IN MISC. NO.688/2022 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-19), DISMISSING THE PETITION FILED U/O.9 RULE 9 R/W SEC.151 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Though the appeal is listed for admission, but with consent of both the learned counsel appearing for the parties, the matter is taken up for final hearing. 2. The petitioners in Misc.No.688/2022 and plaintiffs in O.S.No.3361/2015 have filed this appeal, calling in question the order dated 25.03.2024 passed in Misc.No.688/2022 on the file of VII Additional City Civil and Sessions Judge, (CCH-19), Bengaluru (hereinafter referred to as ‘the Trial Court’ for short) thereby, the petition filed under Order IX Rule 9 read with Section 151 of CPC is dismissed. Thus, the suit was not restored on its board. 3. It is stated that the petitioners have filed a suit for partition and separate possession by metes and bounds. When on date 21.04.2022, the suit was scheduled for the plaintiffs’ evidence, but on that day the - 4 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 plaintiffs were not present before the Trial Court therefore, the Trial Court dismissed the suit for non-prosecution. 4. It is submitted by the counsel for the plaintiffs/petitioners that on the very same day, one of the relatives of the plaintiffs died therefore, the plaintiffs have rushed to attend cremation ceremony and could not appear in the suit to give evidence. Hence, the suit was dismissed as non-prosecution. 5. On the very same day, counsel for the plaintiffs filed an application under Order IX Rule 9 of CPC read with Section 151 of CPC for recalling the order of dismissal of the suit as non-prosecution and restoring the suit on its board, but that was also dismissed. 6. When this being the fact, though learned counsel for the respondents/defendants submitted that in the petition and in examination of chief in the Misc. Petition, the reason for being absent is stated to be due to death of relative and he was supposed to attend cremation - 5 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 ceremony, the plaintiffs/petitioners have filed an invitation card dated 21.04.2022, which pertains to Brahma Rathothsava function at Kodanda Rameshwara Temple. Whatever may be the reasons and discrepancies in this regard, when the application under Order IX Rule 9 read with Section 151 of CPC filed for recalling the order and restoring the suit on the very same day the suit was dismissed for non-prosecution, this could have been considered in a magnanimous way with a particular course. If the appeal is not allowed, then the plaintiffs would be deprived of making out their claim as they intended to exercise in the suit. 7. Therefore, the Court is of the opinion to give one more chance to the petitioners/plaintiffs to contest the suit and the Trial Court is directed to dispose of the suit on merits in accordance with law. Therefore, for the aforesaid reasons, the impugned order dated 25.03.2024 passed in Misc.No.688/2022 is set aside and consequently, - 6 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 the suit in O.S.No.3661/2015 is hereby restored on its board. 8. The petitioners/plaintiffs are directed to lead evidence without seeking unnecessary adjournments. Therefore, the appeal is liable to be allowed with cost of Rs.10,000/- payable by the plaintiffs/petitioners to the respondents/defendants. 9. In the result, I proceed to pass the following: ORDER i. The appeal is allowed with cost of Rs.10,000/- payable by the plaintiffs/petitioners to the defendants/respondents. ii. The impugned order dated 25.03.2024 passed in Misc.No.688/2022 by the VII Additional City Civil and Sessions Judge, (CCH-19) at Bengaluru, is hereby set aside. iii. The suit in O.S.No.3361/2015 is restored on its board. - 7 - NC: 2025:KHC:16219 MFA No. 3877 of 2024 iv. The plaintiffs/petitioners are directed to lead evidence without taking unnecessary adjournments. v. The parties shall appear before the Trial Court on 09.06.2025. vi. The parties shall cooperate with the Trial Court for early disposal of the suit as expeditiously as possible without taking unnecessary adjournments. vii. No order as to costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 32