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Judgment
A.V. Chandrashekara, J.—Heard the learned Counsel appearing for both the parties and the matter is taken up for final hearing with their consent.
The order dated 25.01.2013 passed in Mis. No. 125/2011 filed under Order IX Rule 13 of CPC is called in question.
The learned Prl. Senior Civil Judge & CJM, Mysore has dismissed the petition of the appellant filed under Order IX Rule 13 of CPC on technical grounds stating that the petition filed under Order IX Rule 13 of CPC should have been filed before the Court of III Addl. Civil Judge (Sr. Dn.), Mysore which has passed a decree in OS No. 681/2005 on 24.05.2011. Many other grounds have been urged in the present appeal memo. It is stated that filing of petition under Order IX Rule 13 of CPC before the Court of Prl. Senior Civil Judge & CJM, Mysore is perverse.
The first defendant in the original suit No. 681/2005 is the appellant. The first respondent is the plaintiff in the original suit and respondents 2 and 3 are the defendants 2 and 3 in the said suit. The parties will be referred as they appear in the Trial Court for the sake of convenience.
The plaintiff has filed a suit for the relief of specific performance on the basis of agreement of sale stated to have been executed in his favour on 18.04.2005 by the first defendant agreeing to sell the suit schedule property for a total consideration of Rs. 29.5 lakhs and is stated to have received Rs. 5,00,000/- as an advance on the same day. The first defendant had obtained some financial assistance from the second defendant bank and therefore, the second defendant bank is made as a formal party and third defendant is stated to be a lessee in the suit schedule property.
Since the first defendant did not comply with the demand of plaintiff, he was forced to file the suit for specific performance and first defendant has contested the suit by filing detailed written statement on the basis of which several issues have been framed.
The plaintiff is examined as P.W. 1 and one witness as PW2, in all 22 exhibits have been got marked on behalf of the plaintiff. No evidence is adduced on behalf of the defendants. Ultimately, the suit has been decreed as prayed for on 24.05.2011 by the learned III Addl. Civil Judge (Sr. Dn.) Mysore and at that time, Sri. S.V. Srikanth was the learned III Addl. Civil Judge (Sr. Dn.).
A petition came to be filed under Order IX Rule 13 of CPC by the first defendant requesting the Court to set aside the said judgment and decree on the ground that it was an ex-parte judgment for all practical purpose. When the petition was filed and taken up for consideration, Sri. B Nandakumar was the Prl. Senior Civil Judge & CJM, Mysore. The matter was taken up by the learned Prl. Senior Civil Judge & CJM, Mysore and the said petition has been dismissed purely on a technical ground that the petition should have been filed before the III Addl. Civil Judge (Sr. Dn.), Mysore, who had already decreed the suit.
It is un-understandable as to why the learned Prl. Sr. Civil Judge & CJM, Mysore could not make it over to the learned III Addl. Civil Judge (Sr. Dn.), Mysore for consideration of the said petition. The duty of advocate filing such a petition would be to present the same before the office attached to the Senior Civil Judge at Mysore and the Prl. Senior Civil Judge will be competent to assign the matter to any Court, he deems fit. Instead of assigning the matter to III Addl. Civil Judge (Sr. Dn.), Mysore, who had decreed the suit, the Prl. Senior Civil Judge took up the said case by himself and chose to dismiss the petition on the ground that advocate should have filed the case before the III Addl. Civil Judge (Sr. Dn.), Mysore.
The approach attributed by the learned Prl. Senior Civil Judge & CJM, Mysore is incorrect and improper. He has the authority to assign the case to any Court in terms of Section 9 of The Karnataka Civil Courts Act, 1964 which prescribes the power of the Principal Judge in allotment/assigning civil cases. If he thought fit that III Addl. Civil Judge (Sr. Dn.), Mysore alone was competent to take up the matter, instead of dismissing the said petition on technicality, he should have assigned the matter to III Addl. Civil Judge (Sr. Dn.), Mysore.
It is very relevant to refer to Section 9 of The Karnataka Civil Courts Act, 1964 and the same is reproduced below:
"9. Distribution of work when more than one judge is appointed to a Court:--
(1) When more than one [Senior Civil Judge] is appointed to the [Court of a Senior Civil Judge, or more than one [Civil Judge] is appointed to a [Court of Civil Judge] one of the [Senior Civil Judges] or one of the [Civil Judges] shall be appointed as the Principal [Senior Civil Judge] or the Principal [Civil Judge] and the other Additional [Senior Civil Judges] or Additional [Civil Judges] as the case may be.
(2) Each of the judges appointed to the [Court of a Senior Civil Judge] or a [Court of Civil Judge] may exercise all or any of the powers conferred on such Court by this Act or any other law for the time being in force.
(3) Subject to the general or special orders of the District Judge, the Principal [Senior Civil Judge] or the Principal [Civil Judge] may, from time to time, make such arrangements as he thinks fit, for the distribution of the business of the Court among the various [Senior Civil Judges] or [Civil Judges] thereof."
The above rule is very self explicit and the learned Judge has lost sight of this important section found in the relevant act.
At this stage, Sri. H.C. Shivaramu, learned Counsel appearing for the respondent-plaintiff has relied upon the decision of Hon''ble Apex Court rendered in the case of Vijaykumar Durgaprasad Gajbi and Others Vs. Kamlabai and Others, and contends that the very attitude of the first defendant in not prosecuting the case is self explanatory and that should have been taken into consideration. He has relied upon the relevant observations made by the Hon''ble Apex Court in paragraph 5 at page 149. The same is extracted below:
"5. The question is whether the appellants have given proper explanation for their failure to appear before the Court on 20.02.1992. Though Shri. Sanghi contended that all through they were diligent and it was at the instance of the plaintiffs that the suits were dragged on and that, therefore, no blame could be laid on the appellants'' door, unfortunately, no material was placed on the record either in the Trial Court or in the High Court, much less in this Court, to show that they were diligently prosecuting the suits. On the other hand, the Trial Court recorded that the appellants, being in actual possession of the suit property, were intending to prolong the matter. There is no bona fides or genuineness for their non-appearance on 20.02.1992. It is then stated thus:
"It is also important that the defendants are indulging in all sense and spirits to protract and prolong the progress of the suit, when it is filed in 1983 near about 9 years have lapsed, but no progress could have been achieved so far. Defendants 1 to 5 cannot be allowed to take advantage of their own wrong and they have absolutely no bona fide to come before the court with a case for permission to contest the present suit claim. In other words, defendants 1 to 5 are not diligent in contesting the suit claim and that, resulted into prolonging the suit and its decision. The suit is part heard since last more than 3 years."
This decision would be applicable only if the matter is taken up for final hearing on merits. In the present case, the learned Judge has adopted a pedantic approach and has dismissed the said petition. Suffice to state that the procedure adopted by the Prl. Judge is improper and incorrect. Hence, the appeal will have to be allowed and the order will have to be set aside. Hence, the following:
"The appeal is allowed. The impugned order is set aside. The matter is remitted to the Court of Prl. Sr. Civil Judge & CJM, Mysore to take up the matter by him or to assign it to III Addl. Civil Judge (Sr. Dn.), Mysore for disposal of the petition filed under Order IX Rule 13 of CPC in accordance with law, at the earliest."
The parties shall appear before the Trial Court on 01.04.2015 without fail and the matter shall be disposed of on merits.
It need not be re-iterated that the respondent -plaintiff can make use of the decision rendered by the Hon''ble Apex Court, if it is helpful.
The petition shall be disposed of preferably within three months thereafter.