K. Umesh vs M. Manjunatha

A.V. Chandrashekara, J.—Matter is admitted and appeal is taken up for final disposal with the consent of parties.

This appeal is filed by the petitioner/appellant calling in question the order dated 17.03.2014 passed by Senior Civil Judge, Challakere, in Misc. P. No. 2/2013. Appellant is the sole defendant in an original suit bearing No. 8/2012. Suit came to be filed by the plaintiff seeking recovery of money based on registered simple mortgage, which was contested by the present appellant as the defendant.

After framing of issues, plaintiff was examined as P.W. 1 and was also cross-examined by the learned counsel for the defendant. Case had been posted for cross-examination of the defendant, on which date the counsel representing defendant had requested the trial Court to grant twenty (20) days time, which was rejected in part by granting only two (2) days. Thereafter, again four (4) days time was granted to lead evidence on behalf of defendant. In the meanwhile defendant did not lead evidence and therefore, trial Court heard the arguments of the learned counsel appearing for the plaintiff and chose to decree the suit as prayed for. It was this judgment and decree which was sought to be set aside by filing objection under Order 9 Rule 13 CPC.

Said petition has been dismissed mainly on the ground that the appeal should have been filed under Order 41 of CPC and not under Order 39 of CPC as the defendant had contested the suit by filing the written statement and by cross-examining the P.W. 1.

Single Bench decision of this Court in the case of B.A. Viswanath Vs. Smt. Govindamma, has reiterated that on decreeing the suit for non cross-examination of P.W. 1 will not inhabit the defendant from filing an application under Order 9 Rule 13 of CPC with a request to set aside the judgment. It is held that even in such cases if decrees are passed, they are amenable for filing petition under Order 41 Rule 9 CPC.

What is argued before this Court by the learned counsel for the respondent is that in the present case P.W. 1 had been cross-examined and case has been posted for recording the evidence, which was not availed by defendant and therefore, decision rendered by the learned counsel is not applicable. Non cross-examination of P.W. 1 by the defendant as found in the above referred decision and non-examination by the defendant himself would not make substantial difference to non suit the defendant from making an application under Order 9 Rule 13. The trial court has adopted a too technical approach and it has not properly analysed the decision referred to the by the learned counsel for the defendant therein. The learned Judge has not made any effort as to how the decisions referred to are not applicable to the facts of the case more particularly when the decision of the Hon'ble Apex Court reported in 2008 SCAR Cvl. 224 is relied upon. Hence, appeal is to be allowed.

ORDER

Accordingly, appeal is allowed and the impugned order dated 17.03.2014 in Misc. P. No. 2/2013 by the learned Sr. Civil Judge, Challakere, is set aside. Consequently, O.S. No. 8/2012 is restored to its original position prior to the decree.

The parties shall appear before the trial Court on 18.02.2015 without fail and cooperate with the learned Judge in disposing of the matter without availing any further adjournment. If possible matter shall be disposed of within 5 months from 18.02.2015. Suitable opportunity be given to the parties to lead evidence.