Sri.Chandrashekaraiah vs Sri.V.Lakshminarayana

The plaintiff filed the present Writ Petition against the order dated 14.11.2016 made in Misc.No.12/2013 on the file of Principal Senior Civil

Judge & JMFC., Srirangapatna allowing the Miscellaneous Petition filed by the present respondent under Order 41 Rule 21 read with Section 151

of Code of Civil Procedure restoring the order dated 10.04.2013 made in R.A.No.29/2011 and directed the parties to appear before the Court

on 28.11.2016 in R.A.No.29/2011 without expecting any restoration notice.

The present petitioner filed O.S.No.59/2008 against the respondent for specific performance on 03.03.2008. After contest, the trial Court by

its judgment and decree dated 15.03.2011 dismissed the suit of the plaintiff. Against the said judgment and decree, the present petitioner/plaintiff

filed R.A.No.29/2011. According to the petitioner, the appeal was allowed by a judgment and decree dated 10.04.2013 and directed the

defendant to pay a sum of Rs.2,50,000/- with interest @ 9% p.a. from the date of the suit.

Thereafter, the respondent/defendant filed Misc.No.12/2013 before the Principal Senior Civil Judge and MACT, Srirangapatna under Order 41

Rule 21 read with Section 151 of Code of Civil Procedure to restore R.A.No.29/2011 and permit the defendant/respondent to contest the appeal

on merits contending that on 14.02.2013, counsel for the defendant/respondent was retired in R.A.No.29/2011 and the lower Appellate Court

granted opportunity to the defendant/respondent to engage some other counsel and case was posted to 28.02.2013. Further, the case was

adjourned to 01.03.2013. Thereafter, case was adjourned for pronouncement of judgment on 10.04.2013 and the appeal was allowed on the

same day. It is an exparte order passed by the Appellate Court without giving opportunity though the defendant has not engaged any counsel.

Therefore, he sought to allow the restoration.

The same was resisted by the present petitioner who is the plaintiff contending that inspite of granting sufficient opportunity, the defendant has

not appointed any advocate in R.A.No.29/2011 after retirement of the previous counsel. Therefore, the Appellate Court was justified in allowing

the appeal.

The trial Court considering the entire material on record by the impugned order dated 14.11.2016 has allowed the Miscellaneous Petition filed

by the respondent under Order 41 Rule 21 read with Section 151 of Code of Civil Procedure and restored R.A.No.29/2011 by setting aside the

order dated 10.04.2013. Hence, the present Writ Petition is filed.

I have heard the learned counsel for the petitioner.

Sri.Somashekar, learned counsel for the petitioner contended that the impugned order passed by the trial Court allowing Miscellaneous Petition

filed under Order 41 Rule 21 read with Section 151 of Code of Civil Procedure is erroneous and contrary to material on record. He would further

contend that inspite of granting sufficient opportunity, respondent did not engage services of another advocate. The respondent participated in the

proceedings. After hearing both the parties, the Appellate Court allowed the appeal. Therefore, he sought to quash the impugned order by allowing

the Writ Petition.

Having heard the learned counsel for the petitioner, it is undisputed fact that the present petitioner who is the plaintiff before the trial Court filed

O.S.No.59/2008 for specific performance. After contest, the suit came to be dismissed on 15.03.2011. Aggrieved by the said judgment and

decree, the present petitioner filed R.A.No.29/2011. During the pendency of the said proceedings before the lower Appellate Court, the counsel

representing the respondent-defendant retired from the case by filing a memo. It was allowed by the lower Appellate Court and granted time up to

28.02.2013 to the respondent-defendant to engage some other counsel. Though the defendant-respondent has not engaged any counsel, the lower

Appellate Court has proceeded to dispose of the appeal on merits holding that on 01.03.2013, the arguments of the respondent was taken as

heard and the case was posted for judgment.

It is the specific contention of the learned counsel for the petitioner before this Court that even after providing sufficient opportunity, the

respondent did not engage the services of any counsel. But contrary to the said contention, the learned Judge who allowed the appeal on

10.04.2013 has recorded a finding that the counsel for the respondent was heard on 01.03.2013. It clearly depicts that the said finding of the

Appellate Court is contrary to material on record as rightly pointed by the learned counsel for the petitioner. It is not the case of the petitioner that

the lower Appellate Court has heard the respondent. In the absence of the same, the lower Appellate Court allowed the appeal exparte without

giving opportunity to the respondent to engage another counsel.

The learned Principal Senior Civil Judge after considering the entire material on record both the oral and documentary evidence has recorded a

finding that a perusal of the order sheet in R.A.No.29/2011 discloses that on 14.02.2013, after retirement of the counsel for the respondent, the

Court granted time to the respondent for appointment of some other counsel. The order sheet further discloses that admittedly the respondent has

not engaged any counsel. Inspite of not engaging counsel by the respondent, on 01.03.2013, the arguments of the respondent was taken as heard

and the case was posted for judgment. It clearly indicates that the judgment and decree passed in R.A.No.29/2011 was exparte and respondent

was not given opportunity to advance arguments on merits. The learned Judge also recorded a finding that a perusal of provision of Order 41 Rule

21 of Code of Civil Procedure discloses that when appeal is heard exparte and judgment is pronounced against the respondent, the respondent

may apply to the appellate Court to rehear the appeal and if he satisfy the Court that he was prevented from sufficient cause from appearing when

the appeal was called on for hearing, the Court shall rehear the appeal on such terms as to cost or otherwise as it think fit to impose upon him.

Accordingly, the learned Judge has allowed the Miscellaneous Petition filed under Order 41 Rule 21 read with Section 151 of Code of Civil

Procedure and restored R.A.No.29/2011 for rehearing on merits.

It is also relevant to state that the impugned order came to be passed on 14.11.2016 directing both the parties to appear before the Court in

R.A.No.29/2011 on 28.11.2016 without expecting any restoration notice. The impugned order passed by the learned Judge is in accordance with

law. The petitioner has not made out any ground to interfere with the same by exercising powers under Article 227 of the Constitution of India.

Accordingly, the Writ Petition is dismissed.