IN THE HIGH COURT OF KARNATAKA CIRCUIT I3ENCH AT DHARWJAD DATED THIS THE 13TH DAY OF JANUARY, 2011 BEFORE THE HON’BLE MRJUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.2 1 192/2010(CPC) BETWEEN: Praveen S/o Veerappa Mulgund, Age:40 Years, 0cc: Private Work, R/at Prabhu Nivas, 4th Cross, 1st main, Narayanapur Dharwad. Appellant (By Sri.Avinash Banakar Adv.for Sri.F.V.Patil, Advs.) AND: 1. Shashikant Nagaraj Tonapi, Age:Major, R/at Narasimha Temple Gandhi Chowk, Dharwad. 2. Srinivas Nagaraj Tonapi Age:Major, R/at Narasimha Temple Gandhi Chowk, Dharwad. 3. Raju Nagaraj Tonapi, Age:Major, R/at Narasimha Temple Gandhi Chowk, Dharwad. -2- 4. Rama W/o Hanumantarao Modali, Age:Major, R/at Narasimha Temple Gandhi Chowk, Dharwad. 5, Basavaraj Tumbar Buddi, Age: Major, R/at 1st cross, Gandhinagar, Near Hanuman Temple, (claiming to be the power of attorney Holder of Respondents-i to 4 6. Shavaputrappa S/o Basappa Biradar, Age: 44 years, 0cc: Government Service, R/at Sri. Mallikarjun Nilaya, Near Jshwar Temple, 2nd main, 1st Left Road, Vidyagiri, Dharwad. (Note: Respondent No.6 is R/o of present new address.) Respondents (BY Sri.S.S.Patil, Adv. for R5 Sri. M.P.Vastrad, Adv. for R6. R1-R4 is served.) This MFA is filed under order 43 rule 1(t) of CPC., against the judgment and order dated: 18.07.2009 passed in Misc. Civil.No.39/2009 on the file of the I-Additional Civil Judge (Sr.Dn.) and CJM, Dharwad, dismissing the petition filed under order 9 rule 4 of CPC. 4< o—yç Thisjticth. coming on for hearing this day, the court V’i & made the following: JUDGEMENT This appeal is by the petitioner before the Lower Appellate Court questioning the order passed in Misc. Application No.39/2009 by the First Additional Civil Judge (Sr.Dn.) and CJM, Dharwad dated 18.07.2009 where under petition filed under Order 9 Rule 4 of CPC for setting aside the order dated 09.04.2009 passed in R.A.No.131/2006 and for restoration of the appeal came to be dismissed, 2. The respondent herein filed O.S.No.81/2005 on the file of III Additional Civil Judge (Jr.Dn.), Dharwad seeking relief of declaration and injunction against the defendant appellant herein. The said suit on contest came to be decreed by order dated 12.06.2006. 3. Aggrieved by the said order, appellant herein preferred an appeal R.A.No. 131/2006 on the file of I Additional Civil Judge (Sr.Dn) & CJM, Dharwad and by order dated 09.04.2009 appeal came to be dismissed for default, since the appellant and his counsel were not present. Against the said order a petition under Order 9 Rule 4 of CPC came to be filed seeking recall of the said order of dismissal. On contest petition came to be dismissed by order dated 18.07.2009. It is this order which is questioned in the present appeal. -4- 4. Heard learned advocates appearing for the parties. Perused the order passed by the Courts below. The plea put forward by the appellant for restoration of the appeal was against the order of dismissal on I.A.No.8, the appellant had preferred writ petition in WP.No.628 16/2009 before this Court and after its disposal on 24.04.2009 appellant came to know about the dismissal of the appeal before lower appellate Court and sought for its restoration. It was also contended that hearing date was not known to the counsel nor the appellant due to non-entry of adjournment date in the Court dairy. This contention came to be refuted by the respondents. The Lower Appellate Court on examination of the records, found that contention of the appellant regarding entry in Court dairy is far from truth and contrary to facts. Said findings deserves to be accepted since Lower Appellate Court has given findings on facts. However it is to be noticed that counsel for the appellant has not appeared on the hearing date on i.e., 09.04.2009. The matter was pending before the Appellate Court and in appeal the presence of the parties is not of much relevance. Hence, appellant is also not present before the Appellate Court. Though this Court also would not accept the plea put forward by appellant about non-entry in the dairy, taking into consideration the principle of natural justice and also to ensure that party was not before the Lower Appellate Court and party should not suffer in justice on account of lapse of the learned advocates, it would be necessary to restore the appeal to its file for being disposed of in accordance with law and on merits which would be subject to payment of cost of Rs.2,000/- by the appellant to the respondent No.5 who has appeared before this Court and contested the matter by engaging counsel Payment of cost shall be condition precedent for restoration of the appeal. 6. In view of the above discussions, the following order is passed. Appeal is allowed and order dated 18.07.2009 is set aside and appeal in R.A.No.131/2006 is restored and petition under order 9 Rule 4 of CPC for restoration of the appeal is allowed and appeal in R.A.131/2006 which came to be dismissed on 09.04.2009 is restored to its file subject to payment of cost of Rs.2,000/- by the appellant herein to the 5th respondent and it shall be -6- condition precedent to proceed with the appeal Ordered accordingly. Mck/