- 1 - NC: 2025:KHC:954 MFA No. 8330 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL NO. 8330 OF 2024 (CPC) BETWEEN: SRI. V. RAMAKRISHNA S/O. LATE. VENKATARAYAPPA, AGED ABOUT 55 YEARS. R/AT NO.489, 'F' BLOCK, SAHAKARANAGARA, BANGALORE-560 092. …APPELLANT (BY SRI. THYAGARAJ R., ADVOCATE) AND: 1. SMT. ADILAKSHMI W/O G. CHANGALARAYAPPA, AGED ABOUT 67 YEARS. 2. SHRI G. CHENGALARAYAPPA, S/O LATE G. KRISHNAPPA, AGED ABOUT 75 YEARS, BOTH ARE R/AT NO. 194, ARUNODHAYAM, 6TH 'A' CROSS, AECS LAYOUT, RMV 2ND STAGE, SANJAYANAGAR, BANGALORE-560 094. 3. SRI. K.V. RANGAPPA, S/O K.R. VENKATARMANAPPA, Digitally signed by KAVYA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:954 MFA No. 8330 of 2024 AGED ABOUT 68 YEARS, R/AT NO.NO.14 , MARUTHI NAGAR MAIN ROAD, YELAHANKA, BANGALORE-560 064. PRESENTLY R/AT NO.18/19, 1ST MAIN RAOD, MARUTHI NAGAR MAIN ROAD, YELAHANKA, BANGALORE-560 064. 4. SMT. B.S. JAYALAKSHMI, W/O LATE B. V. SEETHARAMA RAO, AGED ABOUT 90 YEARS. 5. SRI. B.S. VISHWANATH, S/O LATE B.V. SEETHARAMA RAO, AGED ABOUT 65 YEARS. 6. SRI. B.S. BHADRINATH, S/O LATE B.V. SEETHARAMA RAO, AGED ABOUT 58 YEARS, REPD. BY HIS GPA HOLDER SMT. M. MEERA RAO, AGED ABOUT 55 YEARS. 7. SRI. B.S. SHAMASUNDAR, S/O LATE B.V. SEETHARAMA RAO, AGED ABOUT 55 YEARS. RESPONDENTS NO.4 TO 7 ARE R/AT NO.2230/83, 9TH MAIN 'E' BLOCK, RAJAJINAGAR 2ND STAGE, BANGALORE-560 010. …RESPONDENTS (BY SRI. D.N. ARUN KUMAR, ADVOCATE FOR C/R1 AND R2) - 3 - NC: 2025:KHC:954 MFA No. 8330 of 2024 THIS MFA IS FILED U/O 43 RULE 1(c) OF CPC, AGAINST THE ORDER DATED 16.10.2024 PASSED IN CIVIL MISC.NO.126/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE PETITION FILED WITH COST OF RS.10,000/- PAYABLE TO THE DLSC, BENGALURU RURAL DISTRICT, BENGALURU UNDER ORDER 9 RULE 9 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This appeal is filed by the appellant-plaintiff under Order-43, Rule-1(c) of CPC for setting-aside the order of the trial court, passed in Civil Misc.No.126/2018, dated 16.10.2024, dismissing the application for restoring the suit which was dismissed for default by the trial court. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. 3. The case of the appellant-plaintiff is that the plaintiff had filed a suit originally in O.S.No.1408/2013, before the Civil Judge (Junior Division), for declaration and - 4 - NC: 2025:KHC:954 MFA No. 8330 of 2024 injunction. After appearance of the respondents/ defendants, the plaint was returned on the point of pecuniary jurisdiction and the same was presented before the Senior Civil Judge and renumbered as O.S.No.808/2014. Subsequently, summons were taken, which was not served and it was dragged for almost five years and it is alleged that the plaintiff was died on 26.05.2018 and the subsequently on 26.06.2018, the suit came to be dismissed for default under Order-IX Rule-2 of CPC. Immediately, the Legal Heirs of appellants i.e., applicants have filed an application for restoration of the suit by filing an application under Order-IX, Rule - 9 of CPC, which came to be dismissed by the Trial Court, mainly on the ground that the petitioner/applicant required to file under Order-IX, Rule-4 of CPC, but not under Rule-IX, Rule-9 of CPC. Hence, it is contended that merely a wrong provision was quoted by the applicant, that itself is not a ground for dismissal of the application. The appellant has filed a suit and the same was contested by the other side. Thereafter, it was returned and once - 5 - NC: 2025:KHC:954 MFA No. 8330 of 2024 again the case was presented before the Senior Civil Judge Court. Two of the defendants are said to be Advocates and they have dodged the case without receiving the Notice, even though there were appearing before the Junior Division Court. Therefore, the order of the Trial Court requires to be set-aside. It is also contended by the learned counsel that the respondent also filed a suit for injunction against the appellant/plaintiff in O.S.No.1184/2013 for injunction is still pending. 4. The learned counsel for the respondents objected the appeal contending that for five years, they have not taken any steps and dodged the matter and thereafter the original plaintiff died and an application was only a flimsy ground and therefore the trial court rightly dismissed the application and there is no grounds for interference. Hence, prayed for dismissal of the appeal. 5. Having heard the arguments and perused the record. The points arise for consideration is: - 6 - NC: 2025:KHC:954 MFA No. 8330 of 2024 i) Whether the trial court committed an error in dismissing the application only on the technical ground for quoting the wrong provision of 'Order-IX, Rule-9 of CPC' instead of 'Order-IX Rule-4 of CPC'? ii) What order? 6. On perusal of the records and hearing the arguments of the learned counsel, it is seen from the records that the original plaintiff in viz., Sri.V.Ramakrishna in O.S.No.1184/2013 against the respondents and it is stated that they all appeared before the trial court and thereafter the trial court returned the plaint for the purpose of presenting the same before the Senior Civil Judge on the point of jurisdiction. Subsequently, the same was before the Senior Civil Judge Court and renumbered as O.S.No.808/2014. Thereafter, the summons were issued to the respondents / defendants continuously and it was not served on them. Later for one or other reasons, the matter was dragged for almost four years and ultimately, the originally the plaintiff was said to be died - 7 - NC: 2025:KHC:954 MFA No. 8330 of 2024 on 26.05.2018. The very next month, within one month on 26.06.2018, the suit of the plaintiff came to be dismissed for default. Of course, the suit was dismissed for default under Order-IX, Rule-2 of CPC. The plaintiff or the legal heirs are required to file application for restoration of the suit by filing necessary application along with the Affidavit under Order-IX, Rule-4 of CPC. Even Rule-4 of CPC provides for filing fresh suit or restoration of the suit which was already dismissed. Such being the case, though the appellant filed an application under the wrong provision quoting Order-IX, Rule-9 instead of Order-IX, Rule-4, that itself is not a ground for rejecting the application by the trial court. 7. The order of the trial court at para - 13 of Civil Misc. No.126/2018, it reveals that it is only on the technical ground for quoting the wrong provision the appeal came to be dismissed. Though it is stated that the case was pending for long years, and no proper steps were taken, but it is main ground for dismissal for wrong - 8 - NC: 2025:KHC:954 MFA No. 8330 of 2024 provision quoted by the appellant as under Order-IX, Rule - 9 of CPC, the trial court categorically held at para-13 as under: "13. It is further pertinent to note that the said suit came to be dismissed under Order-IX, Rule- 2 of CPC for default. This petition is being filed under Order-IX, Rule-9 of CPC, stating that the suit was came to be dismissed for non- prosecution. the petition under Order-IX, Rule-9 of CPC is maintainable if the suit was dismissed under Order-IX, Rule-8 of CPC. The said suit was came to be dismissed for default under Order-IX, Rule-2 and the petition would be filed under Order-IX, Rule-4 of CPC." 8. It is well-settled principle by this Court and by Hon'ble Supreme Court that merely mentioning of a wrong provision, the relief cannot be rejected or denied. Therefore, I'am of the view that once the defendants have already appeared in the original case in O.S. No.1184/2013, before the Civil Judge Court, which it was again represented before the Senior Civil Judge Court, the - 9 - NC: 2025:KHC:954 MFA No. 8330 of 2024 notice was not received by them and it is also admitted fact that the respondents have already filed a suit for injunction in O.S. No.1184/2013, which is also still pending in the Junior Division Court. Such being the case, the suit filed by the respondents / defendants is for bare injunction and the suit filed by the appellants / plaintiffs is for declaration and injunction, which is comprehensive suit and which determines the rights of the parties and dissolve the issues and real dispute between the parties. Such being the case, the order of the trial court dismissing the application is not correct, which requires to be set- aside. Accordingly, I pass the following: ORDER i) The appeal is allowed. ii) The order of the trial court dismissing the application is hereby set-aside. iii) The application filed by the applicant under Order-IX, Rule-4 of CPC instead of wrongly mentioned as Order-IX Rule- 9 of CPC, is hereby allowed. - 10 - NC: 2025:KHC:954 MFA No. 8330 of 2024 iv) The suit of the plaintiff in O.S. No.808/2014 is restored to the original file. v) Respondent Nos.1 and 2 and the appellant shall appear before the trial court, without any further notice. vi) The trial court shall endeavor to dispose off the matter as early as possible, by issuing summons on the other unserved defendants, if they are not merely served in the Court, if they are served in the first court in O.S.No.1408/2013. vii) The Trial Court shall take care of notice already served in the first court in O.S.No.1408/2013 and proceed with the case. viii) Cost of Rs.5,000/- to be payable to respondent Nos.1 and 2. Sd/- (K.NATARAJAN) JUDGE JJ List No.: 1 Sl No.: 35