1 Reserved on : 24.09.2025 Pronounced on : 25.10.2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CIVIL REVISION PETITION NO.19 OF 2014 BETWEEN: 1 . DAYANANDA PAI AGE: MAJOR S/O LATE NARASIMHA PAI NO.84/1, 1ST FLOOR, K.H.ROAD BENGALURU - 560 027. 2 . GREEN ORCHARDS FARM HOUSES PRIVATE LIMITED BEING A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT NO.10/1, GROUND FLOOR LAKSHMINARAYNA COMPLEX PALACE ROAD, BENGALURU - 560 052. REPRESENTED BY ITS AUTHORISED SIGNATORY SRI LINGARAJA K. M., AMENDED VIDE ORDER DATED 01.09.2021 3 . YESHWANT SHENOY S/O LATE H.V.SHENOY AGE: MAJOR 2 NO.43, 2ND CROSS, NEHRU NAGAR BENGALURU - 560 020. ... PETITIONERS (BY SRI G.L.VISHWANATH, SENIOR ADVOCATE FOR SMT. MANASA AND SRI V.C.RAJU, ADVOCATES) AND: 1 . MAQSOOD ALI S/O MEHMOOD ALI AGED ABOUT 50 YEARS R/AT: ALI ESTATE VASUDEVAPURA YELAHANKA HOBLI BANGALORE NORTH TALUK BENGALURU - 560 054. 2 . SMT. BILQUEES MAQDOOM ALI S/O MAQDOOM ALI AGED ABOUT 45 YEARS. REPRESENTED BY HER G.P.A.HOLDER OF RESPONDENT NO.1 3 . MEZAAN MAQDOOM ALI S/O MAQDOOM ALI AGED ABOUT 12 YEARS MINOR-REPRESENTED BY HIS NEXT FRIEND SMT. BILQUEES MAQDOOM ALI-MOTHER RESPONDENT NOS.2 AND 3 ARE R/AT ALI ESTATE, VASUDEVAPURA YELAHANKA HOBLI, BANGALORE NORTH TALUK BENGALURU - 560 054. 4 . MEHMOOD ALI S/O MUMTAZ ALI 3 AGED ABOUT 76 YEARS. 5 . SMT. TAHIRA ALI W/O MEHMOOD ALI AGED ABOUT 62 YEARS RESPONDENT NOS.4 AND 5 ARE R/AT NO.755, SOUTH BLAKELY STREET DUNMORE, PA SCRANTON PENNSYLVANIA, USA). ... RESPONDENTS (BY CAPTAIN ARVIND SHARMA, ADVOCATE FOR R1; SRI K.S.RAHUL CARIAPPA, ADVOCATE FOR R2 AND R3; NOTICE TO R4 AND R5 ARE DISPENSED WITH VIDE ORDER DATED 31.01.2015) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CIVIL PROCEDURE CODE PRAYING TO ALLOW THIS REVISION PETITION AND TO CONSEQUENTLY TO SET ASIDE THE ORDER PASSED IN MISC. NO.850/2007 ON 31.10.2013 BY THE III ADDITIONAL CITY CIVIL JUDGE, CCH. NO.25, BANGALORE AND TO CONSEQUENTLY DISMISS THE SAID MISC. PETITION. THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.09.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 4 CAV ORDER The petitioners are before this Court calling in question an order dated 31-10-2013 passed by the III Additional City Civil and Sessions Judge, Bengaluru in Miscellaneous No.850 of 2007 and all proceedings pending thereon. 2. Heard Sri G. L. Vishwanath, learned senior counsel appearing for the petitioners; Captain Arvind Sharma, learned counsel appearing for respondent No.1 and Sri Rahul Cariappa K.S., learned counsel appearing for respondents 2 and 3. 3. Facts, in brief, germane are as follows:- The petitioners are defendants and respondents the plaintiffs in O.S.No.7295 of 2002 out of which, Miscellaneous No.850 of 2007 concerns the present petition. The saga begins in O.S.No.7295 of 2002 which comes to be dismissed for default on 29-10-2007. A miscellaneous petition in Miscellaneous No.850 of 2007 is filed CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA 5 seeking restoration of the suit. During the pendency of Miscellaneous No.850 of 2007, a memo dated 21-01-2011 is filed stating that the plaintiffs are not pursuing the petition in view of the earlier compromise entered into between the parties in O.S.No.496 of 2008. It is the averment in the petition, that notwithstanding the same, the concerned Court rejects the memo filed, which clearly held that the plaintiffs were not interested in pursuing the matter and by the impugned order, restores the suit which had been dismissed for its non-prosecution. It is this order that petitioners/defendants call in question in the subject revision petition. 4. The learned senior counsel Sri G.L. Vishwanath appearing for the petitioners would vehemently contend that the issue relates to the year 1991. There were several proceedings between the parties. Suits in O.S.Nos.7295, 7296 and 7297 of 2002 were filed notwithstanding a compromise entered into by other family members. Again, a comprehensive suit is filed seeking declaration of title and injunction by the petitioners against the Trust and other family members including the children of one Mehmood Ali. The 6 respondents 1 to 3 therein filed R.F.A.No.154 of 2009 challenging the compromise entered into in O.S.No.496 of 2008. The R.F.A. then was dismissed as withdrawn. The suit in O.S.No.496 of 2008 thus ended in a compromise. There are in all 28 defendants. Notwithstanding the compromise entered into between the parties, a miscellaneous in Miscellaneous No.850 of 2007 is preferred seeking recall of the suit which ended in a compromise. During the subsistence of Miscellaneous No.850 of 2007, a memo again is filed not to pursue the petition in view of the compromise entered into in O.S.No.496 of 2008. The concerned Court rejects the memo and passes an order recalling the suit that had been dismissed for non- prosecution in O.S.No.7295 of 2002. 5. The learned senior counsel appearing for the petitioners submits that despite compromise petition, the Advocate is wanting to pursue the matter and not the parties. The parties have also filed a memo before the concerned Court that they are not interested in pursuing the matter. Therefore, it is a gross abuse of the process of law to permit the suit to continue, as a result of allowing of the miscellaneous petition. 7 6. Per contra, the learned counsel Captain Arvind Sharma would vehemently refute the submissions in contending that the memo of compromise that is filed is not signed by the defendants. There is a fraud played by the Court. It is, therefore, the concerned Court has allowed the application and restored the suit. He would submit that how a revision petition would become maintainable against an order which only restored a suit which had been dismissed for non-prosecution by allowing the miscellaneous petition, is ununderstandable. He would submit that there are seriously disputed questions of fact as to how the compromise was entered into between the parties. It is on that basis the concerned Court has directed to hear the suit and conclude the proceedings. The subject petition is pending for 11 years now and the suit is of the year 2002. He would contend that going into merit of the matter in a revision petition which challenges the order of recalling of the suit which had been dismissed for non-prosecution would not arise. He would seek dismissal of the petition. 7. The learned senor counsel for the petitioners would join issue and take this Court through plethora of documents produced 8 along with a memo to contend that permitting further proceedings itself would become an abuse of the process of law and, therefore, the revision petition must be allowed, failing which, it would be putting a premium upon illegality of the respondents. 8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 9. The learned senior counsel for the petitioners has placed on record certain documents placing the history of the litigation. Therefore, it becomes necessary to trace the history. The petitioners purchased lands in various survey numbers in Govindapura, Vasudevapura and Kenchanahalli Villages, Yelahanka Hobli, Bangalore North Taluk from erstwhile owners Mehmood Ali and his wife Tahira Mehmood Ali in terms of various sale deeds. The petitioners claim that they are in possession of the lands and revenue records stand in their names. In the year 1993, sons of Mehmood Ali namely, Maqsood, Maqdoom and Masood Ali are said to have interfered with the possession of the petitioners. 9 Therefore, two suits for injunction are filed by the petitioners in O.S.No.6315 of 1993 and 338 of 1993. On appearance of defendants they are said to have been closed by entering into a compromise. Decree is thus drawn on the said compromise. 10. In the year 2002, the sons of Mehmood Ali and other family members file suits seeking declaration and challenging the alienations made in the year 1991 as being in violation of deed of trust and seek injunction and possession. The suits were in O.S. Nos. 7295, 7296 and 7297 of 2002. Five years thereafter, the suit in O.S.No.7295 of 2002 comes to be dismissed for non-prosecution. On 2-11-2007, immediately after dismissal of the suit for its default, one Mukarram, an Advocate representing the present respondents’ files Miscellaneous No.850 of 2007 seeking to restore the suit in O.S.No.7295 of 2002. Owing to certain disturbance, the petitioners who are said to have acquired title, by purchase of lands, file another suit in O.S.No.496 of 2008, in which the respondents were the defendants. The said suit comes to be compromised in the year 2008 itself between the parties. It is averred that there were 28 defendants in the said suit. Certain 10 clauses of the terms of compromise are to be noticed and they read as under: “…. …. …. 16. Both plaintiffs and defendants 1,7 to 14, 18 to 22 and 25 to 27 submit that, as per the said settlement deed any properties either movable or immovable remaining unsold as on 28-10-1999 shall be distributed to the beneficiaries of the respective trust. But, as on 28-10-1999 there were no properties standing in the name of any of the Trust, as all the properties were sold in the year 1991 itself. So, there were no any immovable properties to be distributed among the beneficiaries of the aforesaid Trust. … … … … 18. Both plaintiffs and defendants 1, 7 to 14, 18 to 22 and 25 to 27 submit that, by virtue of the settlement and receipt of several amounts from the plaintiffs herein and the 15th defendant withdrew the suit filed by him in O.S.No.6105 of 1990, by filing a memo dated 1-10-1993 and had also filed a compromise petition, along with 2nd defendant and husband and father of the 7th and 8th defendant herein, in O.S.No.338 of 1993 dated 29-11-1993, in which defendant No.15 has admitted the ownership of the plaintiffs and also the sale deeds executed by the Defendants No.1, 9, 18 and 22 in respect of the suit schedule properties and had received various amounts under Cheques from the plaintiffs, towards the full and final settlement of 15th defendant’s alleged claim over the suit schedule properties. … … … … 20. Both plaintiffs and defendants 1, 7 to 14, 18 to 22 and 25 to 27 submit that, out of the said suits the suit in O.S.No.7295 of 2002 was dismissed for non- prosecution and a Miscellaneous Petition filed in Misc.Pet.No.850 of 2007 is pending for consideration.” 11 One of the conditions of compromise was withdrawal of suit in O.S.Nos.7296 of 2002 and 7297 of 2002. 11. Challenging the said compromise, the Trust filed R.F.A.No.154 of 2009. The said regular first appeal comes to be withdrawn by filing a memo in terms of an order dated 11-11-2010. A learned single Judge of this Court, on the memo, dismissed the appeal as not pressed, by the following order: “This Appeal is filed under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 14.11.2008 made in O S No.496/2008 on the file of City Civil Judge, Bangalore City. This Appeal is filed by appellant No.1 (defendant No.2). The Appellant No.2 is aged about 11 years (defendant No.8) and appellant No.3/Trust is defendant No.1. 2. The vakalathnama in the Appeal is signed by appellant No. 1 for self and on behalf of appellant Nos.2 and 3. The appellant No.2 is a minor. M/s. M S Rajendra Prasad Associates has filed power for appellant No.2 and the vakalathnama is signed by Sri N Umesha, as a Court guardian. The guardianship order is not produced. Today, Ms. Neetha H Y files power for appellant Nos. 1, 2 and 3 with N O C given by Sri M.S. Mukkarram. 3. Misc.Cvl. No. 14555/2010 has been med under Order 1 Rule 10 of C Petition C by the applicants-Masood and Masoom Benefit Trust and Masood M Ali through Sri R B Naik Associates. 4. A memo dated 6.10.2010 has been filed by the appellant in the Office. According to the memo, the appellant prays for dismissal of the Appeal as not pressed. 12 5. The appellant/Maqsood M Ali is present before the Court. He is identified by Sri M S Mukkarram and the present Counsel-Ms. Neetha H Y. 6. Since the Appeal is not pressed, there cannot be any good ground to reject the memo. 7. Sri M S Rajendra Prasad, learned Senior Counsel, appearing for respondent No.2/minor. submits that liberty may be given to defendant No.2 to prefer the Appeal challenging the impugned judgment and decree. 8. Since the Appeal itself is not pressed, the impleading application registered as Misc.Cvl. No. 14555/2010 does not survive for consideration. 9. In the result, the Appeal is dismissed as not pressed. with liberty to the Court guardian of appellant No.2 to take appropriate course of action, in the interest of appellant No.2, in accordance with law. Accordingly. Misc. Cvl. No. 14555/2010 is disposed off.” At paragraph-9 supra, the learned single Judge dismissed the appeal as not pressed but granted liberty to the Court Guardian of the 2nd appellant to take appropriate course of action, in the interest of appellant No.2 in accordance with law. It is later, the respondents pursued the miscellaneous application so filed on 2-11-2007 seeking recall of the order of the concerned Court dismissing the suit for default. 13 12. In the miscellaneous petition, it is the contention that the plaintiffs themselves come before the Court and file a memo stating that they are not interested in pursuing the matter. The memo reads as follows: “The petitioners beg to state as follows: In view of the settlement of the dispute between the petitioners and the respondents herein, as per the terms and conditions of the compromise petition filed in O.S.No.496 of 2008 on the file of the Hon’ble City Civil Court at Bangalore, the above petition has become infructuous. WHEREFORE, the petitioners pray that this Hon’ble Court be pleased to dismiss the above petition as not pressed, in the interest of justice and equity. Sd/- Advocate for Petitioner No.1. Sd/- Petitioner No.1. Sd/- Advocate for petitioner No.2 Sd/- Petitioner No.2 and also on behalf of petitioner No.3 who is minor Bangalore. Dated: 21-01-2011.” After the memo being filed, the learned counsel is said to be pursuing the application seeking recall of the suit that had been dismissed for non-prosecution. The application reads as follows: “MEMORANDAM OF CIVIL MISCELLANEOUS PETITION FILED UNDER ORDER IX RULE IV OF THE CODE OF CIVIL PROCEEDURE. 14 1) The petitioner above named humbly submit before this honorable court that the address of the petitioners is as shown in the cause title and the address of the counsel of the petitioner is that of Sri M. S. Mukarram advocate NO.8 3rd main Seshadaripuram, Bangalore - 560 020. 2) The address of the respondents/defendants is correctly described in the cause title for the purpose of service of this court notices, summons, process etc from this honorable court. 3) The petitioners submit that the petitioners filed three original suits bearing No.7295/2002, 7296/2002 and 7297/2002 two original suits No.7296/2002 and 7297/2002 were posted for trial in the CCH No.26 and the original suit No.7295/2002 had been posted before this honorable court the plaintiff filed the above suit bearing O. S. No.7295/2002 against the defendants/respondents for the consequential relief of declaration and possession of the suit schedule properties briefly stated in the plaint schedule of the suit, the plaintiff submit that in the above matter the notices were served to the defendants and the defendants filed their written statements and on the other hand the plaintiffs filed I. Α. NO.I praying this honorable court for restraining the defendants from alienating the suit schedule properties the defendants also filed their objections and the matter was heard on I. A. NO.1 and this honorable court is pleased to allow the I. A. NO.1 and passed an ad-interim order of injunction against the defendants directing the defendants not to encumber or alienate the suit schedule And the above matter was posted for plaintiff properties evidence finally on 29-10- 2007. 4) The petitioners submit that this honorable court is pleased to dismiss the above original suit on the ground of non prosecution the petitioner humbly submit that the reason for non appearance is not intentional, on the other hand the petitioner is having utter most respect for this honorable court the reason for not appearing on 29-10- 2007 is that the court appearing in the above case was engaged before the 22nd ACMM IN CC NO.6195/2003. Wherein the case was posted for the cross examination of the complainant and on the other hand the court was 15 passed NBW against the accused. The urgency shown 1 by the learned magistrate in the above matter was unavoidable. The certified copy of the same is herewith produced for kind perusal of this honorable court. 5) The plaintiff submit that the plaintiff filed a civil miscellaneous petition before the Honorable Principal City Civil Judge praying for the transfer of the other two original suits bearing O. S. No.7296 and 7297/2002.from court hall No.26 to this honorable court hall No.25, and to be tried all the original suit in the one court hall in C. Misc No.611/2006, the same is pending for final disposal before the honorable principal city civil judge, the copy of the same is produced for kind perusal of this honorable court. PRAYER Wherefore it is humbly prayed before this honorable court that the plaintiff is ready and bound to obey the order of this honorable court it is also prayed by the petitioner before this honorable court to set aside the order passed by this honorable court dismissing the suit on the ground of non prosecution and restore the above suit with cost in the interest of Justice and Equity.” The learned counsel also places evidence by way of an affidavit in support of Civil Miscellaneous No.850 of 2007. It reads as follows: “AFFIDAVIT BY WAY OF EVIDENCE BY THE PETITIONER / PLAINTIFF: I Shri. M. S. MUKARRAM, Advocate No.472, 1st Floor, 6th Main Road, Upper Palace Orchards', Sadavashiva Nagar Bangalore 560 080. Do hereby solemnly affirm and state on oath as follows: 1) I state that I am the advocate for the plaintiff appearing in the above case I am well conversant of the facts and circumstances of the above case. 16 2) I state that the petitioner No.1 is the plaintiff No.1 and the mother of the petitioner No.3 is the plaintiff No.2 who is a formal plaintiff and the plaintiff No.3 is the petitioner No.3 in O. S. No.7295/2002 the petitioners filed original suit for the relief of declaration and possession against the defendants before this honorable court in O. S. No.7295/2002. 3) I State that the above matter was posted for plaintiff evidence on 29-10-2007. 4) I State that I engaged my junior advocate to pray for adjournment in the above original suit. Since I was engaged before 22nd ACMM in C.C.No.6195/2003 the same was posted for cross examination of the complainant, the certified copy of the same was produced before this Honorable Court. 5) I state that my junior advocate contacted me in 22nd ACMM and stated that this Hon'ble Court imposed cost of Rs.200/- Rupees Two Hundred I paid a Indian currency Note of Rs.1000/- to get it changed in two hundreds and pay the cost imposed by this Hon'ble Court accordingly my junior advocate went to have change and to come before this Hon'ble Court. But unfortunately the case was recalled again in the first round of the court hours and this Hon'ble Court with a finding of non prosecution dismissed the original suit. 6) I state that I filed the above miscellaneous petition on 02-11-2007 during the continuation of the miscellaneous the first petitioner filed application under Order XXXII Rule 3 & 4 for appointment of court guardian the same was marked as I.A. No.3 and is allowed by this Hon'ble Court on 05-06-2009, accordingly the advocate Mr. N. Umesha is appointed as the court guardian. 7) I state that the 2nd plaintiff/petitioner also filed I.A. No.4 under Order XXXII Rule 1 R/W sec 151 of the C. P. C. to appoint her as court guardian Since she is the mother of the 3rd petitioner is the natural guardian the same is Numbered as I.A. No.4 and this Hon'ble Court is pleased to dismiss the same on 05-06-2009 8) I state that the non appearance of the counsel is not intentional the petitioner/plaintiff shall not be put to irreparable injury due to the mistake of the advocate. 17 9) I state that the interest of the minor petitioner No.3 is involved in the above miscellaneous suit along with the interest of the petitioner No.1 the defendants/respondents will take undue advantage of the dismissal of the original suit. This petition is maintainable and filed with in time even notice of restoration is not necessary, Notice after restoration for further hearing is mandatory. 10. I state that I am ready to pay the cost as such imposed by the honorable court. My absence on the date of hearing of the original suit is not intentional I am having much respect to this Honorable Court if the above application is allowed no hardship or injury will be sustained to the respondents on the other hand the petitioner will be put to irreparable injury which can not be compensated by any means. 11) I declare that the averments made in accompanying application para and supra are true and correct to the best of my knowledge, information and belief. WHEREFORE it is humbly prayed before this Hon'ble Court to allow the above Miscellaneous Petition in the interest of Justice and Equity.” 13. The learned senior counsel has placed heavy reliance on the memo that is filed before this Court, said to be by the respondents herein. It reads as follows: “MEMO The 3rd Respondent herein submits before this Honourable Court that he along with his uncle, Sri. Maqsood Ali who is the 1st Respondent herein and his mother, Smt. Bilquees Maqdoom Ali who is the 2nd Respondent herein had filed a suit bearing O. S. No. 7295 of 2002 seeking for a declaration that they were the absolute owners of the Suit Schedule Property therein and for possession against the Petitioners herein with respect to various survey numbers situated at Vasudevapura Village, Yelahanka 18 Hobli, Bangalore North Taluk, Bangalore. It is submitted that the 3rd Respondent was a minor at the time of initiating the said suit and that he was duly represented by his mother, the 2nd Respondent herein, as his next friend. The 3rd Respondent submits that when the suit in O. S. No. 7295 of 2002 was posted for evidence of the Plaintiff, the said suit came to be dismissed for non- prosecution on 29.10.2007. It is submitted that the Advocate appearing on behalf of the Plaintiffs therein had, without our consent/instructions, filed a Miscellaneous Petition bearing No. 850 of 2007 seeking to restore the suit filed in O. S. No. 7295 of 2002 on 2.11.2007 and the same was pending consideration. While things stood thus, the Petitioners herein had filed a suit bearing O. S. No. 496 of 2008 against Maqsood and Maqdoom Benefit Trust, Sri. Maqsood Ali who is the 1st Respondent herein and his children, Smt. Bilquees Maqdoom Ali who is the 2nd Respondent herein, the 3rd Respondent herein who was represented by his mother as his next friend and others with respect to various survey numbers situated at Vasudevapura Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore. The 3rd Respondent submits that the suit in O. S. No. 496 of 2008 was compromised between the parties herein and all other interested persons under a Compromise Petition on 21.01.2011. It is pertinent to mention here that the 3rd Respondent herein who was the 8th Defendant therein, was duly represented by his mother, who was the 7th Defendant therein and the 2nd Respondent herein, as his next friend. It is pertinent to mention here that as per the terms and conditions of the above compromise petition in O. S. No. 496 of 2008, it was agreed between the Parties therein that the dispute between the parties in Mis. Pet. No. 850 of 2007 would be withdrawn by the Respondents herein and a memo to that effect was also filed by Sri. Maqsood Ali who is the 1st Respondent herein, Smt. Bilquees Maqdoom Ali who is the 2nd Respondent herein and the 3rd Respondent herein, represented by his mother Smt. Bilquees Maqdoom Ali. However, the said memo was rejected by the Learned Civil Judge and O. S. No. 7295 of 19 2002 was ordered to be restored challenging which the Petitioners have filed this present CRP. The 3rd Respondent, who is a major now, submits that the compromise arrived at in O. S. No. 496 of 2008 has been in his interest. The 3rd Respondent submits that the Compromise in O. S. No. 496 of 2008 has been acted upon for his welfare and that he is reaping its benefit. The 3rd Respondent submits that as a result of the Compromise between all the interested persons in O. S. No. 496 of 2008, the Mis. Pet. No. 850 of 2007 became infructuous. However, the said Petition continued on the file of the Learned Trial Court by Mr. M. S. Mukarram, Advocate without the authorization of the Respondents herein and the said Petition was allowed on 31.03.2013. Hence, the present petition came to be filed before this Honourable Court by the Petitioners herein. The 3rd Respondent submits that he was duly represented by his mother, who is the 2nd Respondent herein, as his next friend and a compromise was arrived at in O. S. No. 496 of 2008 keeping his best interests in mind. The 3rd Respondent submits that the Compromise in O. S. No. 496 of 2008 has been acted upon for his welfare and that he is reaping its benefits. As such the 3rd Respondent does not want O. S. No. 7295 of 2002 to be restored. Further, the 3rd Respondent submits that the 3rd Respondent herein had filed a memo before this Honourable Court on 21.07.2017 and now prays before this Honourable Court to dismiss the said memo in his interest. The 3rd Respondent, who is a major now, submits before this Honourable Court that he is fully aware of the facts of the case and that he has no objection in allowing the present petition filed by the Petitioners in the interest of justice.” 20 No signatures of the parties are found in the said memo. The concerned Court allows the miscellaneous application by the following order: “ORDER U/O 9 RULE 4 of CPC The petitioners 1 to 3 pray for restoration of the proceedings in O.S.7295/2002 after setting aside the dismissal order dated 29.10.2007. 2. The case of the petitioners in brief is that, O.S.7295/02 came to be dismissed by this court on the ground of non- prosecution on 29.10.2007. Their non-appearance on 29.10.2007 was on account of engaging of his advocate at 22nd ACMM Court in CC. No: 6195/03 because of Inevitable circumstance of cross examining the complainant therein. They had filed the miscellaneous petition also before the Prl. Civil Judge for getting transfer of other two connected cases O.S.7296 and O.S.7297/02 to this court from CCH-26 for the purpose of recording of common evidence in all the three cases and the said transfer petition C.Mis.611/06 was also pending for disposal. They had filed O.S.7296/02, O.S.7297/02 along with O.S.7295/02. The said other two cases were pending in CCH-26. If the dismissal order dated 29.10.2007 is not set aside, they would be put to great hardship. 3. The respondent no.1 and 5 filed their objection statement resisting the grounds made out in the petition contending that the petition is not maintainable as the petition is not signed by any of the petitioners. The petitioners have no interest in prosecuting the case in the original suit and in this petition. Engaging of petitioners advocate in 22nd ACMM Court is not the ground as this court had given more than sufficient opportunities already to the petitioners in the suit proceedings. None of the petitioners represented and appeared in the suit proceedings on any hearing dates. No notice in C.Mis.611/06 till the date of the dismissal, was served on them though the petitioners had filed transfer petition in 2006 21 4. The respondent no.1, 4 and 5 further contend that O.S.496/98 filed by them ended with the settlement in the presence of the petitioner no.1, 2 and 3 who arrayed as defendant no.2, 7 and 8 on 21.1.2011 and consequently, the respondent no.5 executed two registered Deed of Conveyance on the same day in favour of the petitioner no.1. The petitioner no.2 also got the two registered Deed of Conveyance dated 3.4.2009 and 21.11.2010 in favour of herself. In continuation of the compromise terms, the petitioner no.1, 2 and 3 had agreed to get this miscellaneous petition dismissed as withdrawn. RFA No:154/09 filed by the petitioner no.1 against the settlement also came to be dismissed as not pressed vide order dated 11.11.2010 and Hence, this petition becomes infructuous and liable to be dismissed as not maintainable under law. 5. The petitioner has been examined as PW1 relying on Ex.P1 and P2 documents. The respondents have not adduced any evidence though have cross examined the PW1. 6. Arguments of the learned counsels of both the sides were heard. 7. The points that arise for my consideration are: 1. Whether the petitioners prove sufficient cause for not appearing in the proceedings of O.S. No:7295/2002 before this court on 29.10.2007? 2. Whether the petitioners are entitled to get the restoration of the proceedings of said O.S. No:7295/2002? 8. My answers to the above points are: Point No.1-In the affirmative Point No.2 In the affirmative for the following: 22 REASONS Point No.1 & 2: 9. The averments made out in the petition, the contents of Ex.P1 and P2 and the evidence of PW1 disclose that O.S.7295/2002 filed by the petitioners as the plaintiffs against the respondents / defendants was for the relief of declaration and for taking possession of the plaint schedule properties. The said suit was adjourned for recording of the evidence of plaintiffs' side by imposing cost of Rs.200/- to 29.10.2007. On 29.10.2007, the case was called and absence of the advocates for plaints, defendants no.1, 4 and 5 was noted with non- payment of the imposed cost of Rs.200/- by the plaintiffs and thereafter this court was pleased to dismiss the suit for non- prosecution by the plaintiffs' side as supported by the certified copy of the order sheet Ex.P1. 10. PW1 has produced the certified copy of the deposition sheet of the complaint in C.C.No:6195/2003 of the 22nd ACMM, Bangalore consisting of the cross-examination portion in support of his contention that he was engaged in cross-examination of his another client in 22nd ACMM on the same day and thereby was unable to represent before this court in the proceedings of O.S.No:7295/2002. 11. PW1 was the advocate appearing for the petitioners in O.S.No:7295/2002 also. PW1 contends that affidavit evidence of plaintiffs in the declaration suit was to be filed and the plaintiffs were present in the court hall on 29.10.2007. He had engaged his junior colleague to get adjournment on the ground of his involvement in criminal case proceedings, by paying the amount of cost also. As the interest of the minor petitioner no.3 was involved, the petitioner no.2 had filed court guardian application which came to be dismissed on 5.6.2009, in this miscellaneous petition. As such, the fate of minor petitioner/plaintiff would be put to hardship if this petition is not allowed. 12. In this proceeding, all the petitioners appeared on all the effective hearing dates showing their interest in the proceedings. The petitioner no.1 in his written arguments dated 13.8.2013 also requested for adopting the evidence of PW1 on his behalf contending that the act of PW1 is competent and 23 sufficiently complied. None of them opposed the filing of this petition. Both the petitioner no.1 and 2 are showing their concern to the right of the minor petitioner, thereby, the contention of the respondents that PW1 is not empowered to seek the remedy in this petition for the petitioners cannot be accepted. 13. The petitioners contend that they had filed other two suits bearing No:O.S.No:7296/2002 and O.S.No:7297/2002 along with O.S.No:7295/2002 and because they were made over to CCH-26, they were trying to get the transfer of those cases to this court by filing Mis. Petition No:611/2006 before the Prl. City Civil & Sessions Judge, Bangalore. The contention of the respondents that they were not aware about the proceedings of transfer petition Mis. Petition No:611/2006 till filing of the present miscellaneous petition is not the ground to deny the efforts being made by the petitioners to get the orders of all the three cases from one court. It is not their case that Mis. Petition No:611/2006 was not filed by the petitioners and that it is not for their stated purpose. 14. The respondents though cross examined the PW1 have not been examined themselves before this court nor filed any documentary evidence to discredit the evidence of the petitioners side and hence, there is no reason to disbelieve the grounds made out in the miscellaneous petition and the evidence of PW1. 15. The further contention of the respondents is that in view of the compromise entered into by the petitioner no.1 to 3 in their suit O.S.496/2008 on 21.1.2011 and execution of the Deed of Conveyances thereafter in favour of the petitioners by them, there is an obligation on the petitioners to get this miscellaneous petition dismissed as withdrawn. The respondents have furnished the copies of the proceedings of their O.S.No:496/2008 and also the copies of Conveyance Deeds executed subsequently in support of their contentions. 16. O.S.No:496/2008 filed by respondent no.1 and 5 with other two persons against 28 defendants therein was for the relief of declaration of 44 items of different plaint schedule lands. The petitioners with other family and trust members were some of the defendants. The right of each petitioners and the 24 respondent no.2 and 3 to be calculated in the O.S.No:7295/2002 filed by the petitioners and their claimed right in this miscellaneous petition cannot be inferred/presumed as decided. The counsel for the contesting respondents contend that the petitioner no.2 and 3 were jointly allotted 3 acres of land in the compromise memo and it shows that there is a need for determining their right in the original suit which came to be dismissed. Hence, the contention of the contesting respondents that this petition becomes infructous in view of the involvement of petitioners in their O.S.No:496/2008 cannot be accepted. 17. The counsel for the petitioners and the Court Guardian appointed for minor petitioner no.3 filed their written arguments relying on number of reported decisions. 18. The counsels for the petitioners and also the Court Guardian/Advocate contend that suit cannot be dismissed for non payment of cost and non payment of cost results in forfeiture of rights to further prosecute the suit or the defence as the case may be (2010 (1) SCC 53) and they are ready to pay the cost to proceed further which makes them competent to record their evidence. 19. The counsel for the petitioners argued that the interest of the minor petitioner requires to be protected by the court of law and to be agitated in accordance with law in the concerned litigation. 20. In this miscellaneous proceedings, both the petitioner no.1/uncle and 2/mother were insisting for permission to represent the minor petitioner no.3 and the court was pleased to appoint the Court Guardian on 5.6.2009 and in that connection I.A.No:6 filed for review order is remained pending. The pending I.A. No.7 is U/Sec.5 of Limitation Act filed with I.A.No:6. Both the applications do not survive for consideration as the main application is being disposed off with the favourable order. The contesting parties can file similar application in the original suit proceedings where the interest of the minor plaintiff no.2 to be agitated. In this petition proceedings the grounds urged is regarding non-prosecution of the case by the counsel on technical ground also. Hence, no importance can be attached to these I.As in this petition in view of the above discussions. 25 21. As the right of the minor petitioner no.3 is being contested against the petitioner no.1 and 2 namely the uncle and mother of the minor petitioner, in order to safe guard the interest of minor petitioner determination by the competent court of law is required on the disputed issues. Such being the case, the dismissal order passed by this court on the grounds stated in the main petition requires to be restored by imposing the cost on the contesting petitioners. In the result, I answer the points no.1 and 2 in the affirmative and pass the following: ORDER The Mis. Petition No:850/2007 filed by the petitioners under Order 9 Rule 4 of CPC is allowed on cost of Rs.1,000/-. The dismissal order dated 29.10.2007 in O.S.No:7295/2002 is set aside. O.S.No:7295/2002 is ordered to be re- registered/restored on next hearing date. Both the petitioners and the respondents should appear in the restored case on the next date of hearing.” The concerned Court records all the proceedings between the parties and also observes that the present defendants were minors at the time when petitioners 1 and 2 viz., the uncle and the mother of the minor petitioners had entered into certain compromise. The concerned Court holds that on the grounds set out in the miscellaneous petition, the main petition requires to be restored and decided on its merits. 26 14. It is not the case of any of the parties that miscellaneous petition was preferred after a long delay. After the suit was dismissed for default, immediately the miscellaneous petition is preferred. It is no doubt true that several proceedings till filing of the miscellaneous petition or after the miscellaneous petition have taken place. This would not mean that the suit itself should not be heard on its merits. This Court considered the revision petition against an order recalling the order of dismissal of the suit for its non-prosecution. The entire proceedings between the parties are shrouded with seriously disputes questions of fact, as to whether the compromise was entered into or otherwise or the rights of the parties are determined or otherwise. Therefore, it becomes necessary for the suit to be decided. This Court in exercise of its revisional jurisdiction would not obliterate the suit itself, in a challenge to allowing an application restoring the suit to be heard on its merits. It is always open to the parties to agitate whatever has been projected before this Court to be projected before the concerned Court. 27 15. Heavy reliance is placed upon the fact that the Advocate has filed an application seeking restoration of the suit and not the parties. Plethora of submissions are made against the counsel contending that it is the counsel who has filed the application seeking recall and has led evidence and therefore, the proceedings should be annulled. The submission of the learned senior counsel is too farfetched. Whether the counsel has filed the application without the consent or with consent; on the say or on perusal of documents cannot be held that the Advocate has filed without the consent of parties. All these are in the realm of seriously disputed questions of fact. 16. It would have been altogether a different circumstance if the application seeking recall had been preferred ages after the disposal of the suit for its non-prosecution. While it is not the fact that it is filed after a long delay, the application is preferred immediately. Therefore, this Court would not telescope its imagination to what has happened while filing the application seeking recall and obliterate entire proceedings in O.S.No.7295 of 2002. The concerned Court has allowed the miscellaneous petition 28 by rendering cogent reasons. I do not find any perversity in the reasons so rendered for this Court to interfere and obliterate the suit itself. 17. For the aforesaid reasons, finding no merit, the petition stands rejected. The suit is of the year 2002. 23 years have passed by. This revision petition is of the year 2014. For 11 years it has been pending before this Court. Therefore, I deem it appropriate to infuse finality into the proceedings. The concerned Court shall make all endeavour to conclude the suit/proceedings within an outer limit of six months from the date of receipt of a copy of this order. Ordered accordingly. Pending applications, if any, also stand disposed. SD/- (M.NAGAPRASANNA) JUDGE BKP CT:SS