Saraswathamma @ Sarasamma vs Vasanthammani Urs & Ors

Heard the appellant''s counsel. Respondents'' are served and unrepresented.

The II Addl. District Judge, Mysore dismissed the Misc.No.41/2016 filed under Order 41 Rule 19 CPC seeking restoration of the appeal

RA.No.124/2009 on the file of his court. It appears that in MSA.No.40/2013 this court passed an order remanding the appeal to the District

Court with a direction to frame additional issues. If necessary, and try them by fixing a date for appearance of the parties. There was also a

direction given that the appeal should be disposed of within six months. It appears that there was some delay in securing the records of the trial

court and after they were secured on 07.01.2016, the first appellate court heard the counsel appearing for the appellant on additional issues to be

framed. On 13.01.2016, additional issues were framed and the appeal was posted to 14.01.2016 for recording evidence. The counsel for the

appellant prayed for time on that day and the respondents'' counsel was absent. The case was adjourned to 16.01.2016 and on that day the

appellant''s sought for time. Time was granted on cost of Rs.100/- and posted to 18.01.2016. The case was called thrice on 18.01.2016 and there

was no representation on behalf of the appellant. Therefore the evidence from the appellant''s side was taken as ""NIL"" and the case was posted for

recording the evidence from the respondents'' side on 19.01.2016. On that day the appellant''s counsel was present and respondents'' counsel was

absent and therefore the respondents'' side evidence was taken as ""NIL"" and it was posted for arguments on 20.01.2016. Even on that day the

case was called three times. There was no representation at all. Therefore the first appellate court imposed cost of Rs.500/- and adjourned the

case to 21.01.2016 for arguments. On 20.01.2016, the appellant''s counsel was absent. The court waited till 5.25 p.m; there was no

representation. Seeing that there was no cooperation by the parties, the court dismissed the appeal for non-prosecution.

Seeking to recall this order the appellant preferred a miscellaneous petition five days belatedly giving the reason that the appellant was

indisposed of from 14.01.2016 to 21.01.2016. The first appellate court found that the medical certificate produced by the appellant in support of

her illness was not a genuine document. It also observed that the appellant was a defaulting party since beginning and there were no satisfactory

grounds for condoning the delay in filing appeal. Giving these reasons, the miscellaneous petition was dismissed.

The counsel for the appellant argues that delay was just five days and that there are number of instances where delay of more than five years

have been condoned. The first appellate court hurriedly dismissed the regular appeal though the time for disposal of the appeal was extended till

29.02.2016. He therefore prays for allowing this appeal and to restore the regular appeal.

I do not find any infirmity or illegality in rejection of the miscellaneous petition by the District Judge. Whenever there is a direction by the High

Court, it is the responsibility of the parties to co-operate with the Court for disposal of the case within the period. If the parties do not show any

interest in getting their cases disposed of, the court is bound to dismiss the appeal for non-prosecution. The impugned order shows that it has made

its best efforts to see that appeal is disposed of on merits within the time fixed by this court. Though I do not find good ground to interfere with the

impugned order, it is to be stated that since the appeal before the District Court arises out of a suit for specific performance and that the

appellant''s interest is involved in the immovable property, it needs to be adjudicated on merits of the case. Time was there to dispose of the appeal

till 29.02.2016. Therefore under these circumstances, I come to conclusion that the first appellate court could have condoned the delay of five

days in preferring the petition under Order 41 Rule 9 CPC and restored the appeal to its file. For these reasons, I find that this appeal deserves to

be allowed. But the appellant needs to be subjected to cost. Hence the following:

ORDER

i. Appeal is allowed

ii. Order dated 22.03.2016 in Misc.No.41/2016 is set aside on cost of Rs.10,000/- payable to the District Legal Services Authority,

Mysore.

iii. R.A.No.124/2009 is restored to the file of II Addl. District Judge, Mysore.

iv. First Appellate Court is directed to dispose of the appeal on merits expeditiously. Parties are directed to co-operate with the first

appellate court.