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2001 DIGILAW 89 (KAR)

LAXMAN v. RATNA BAI

2001-01-24

CHIDANANDA ULLAL

body2001
CHIDANANDA ULLAL,J. ( 1 ) THIS Miscellaneous First Appeal is directed against the order dated 29. 10 1997 in Appeal No. 15/89 by the Additional District Judge, Bidar, in passing whereof, the learned District Judge had dismissed I. A. No. 2 as the one not maintainable since the same came to be filed under Section 151 of C. P. C. instead of filing the same under order 41 Rule 11 (2) of C. P. C. ( 2 ) THE learned Counsel for the appellant had taken me through the facts of the case as it had been narrated by him, they are as here- under: that the appellant herein had filed originally an appeal is R. F. A. No. 20/1978 before this Court. That, the said appeal came to be dismissed by the Division Bench of this Court for default. That thereafter, the learned Advocate on record in the said appeal had filed I. A no. 2 under Section 151 of C. P. C. praying this Court to recall the order dated 22. 9. 1998, whereby this Court had dismissed the above appeal for default and further to restore the appeal on file. That, when the matter was resting at that, there came amendment of the provisions of Karnataka Civil Courts Act, by Act no. 13 of 1989 and because of that, the said application filed in the said appeal came to be transferred to the Additional District Judge at bidar, henceforth in brief referred to as the district Judge. ( 3 ) IT appears, by inadvertence, the office of the District Judge had registered the same as R. A. No. 15/1989 and that the I. A. No. 2 was accordingly taken up for disposal in the said R. A. The learned District Judge while considering the said I. A. before him had dismissed the same on the ground that the same came to be filed under a wrong provision of law ( 4 ) THE appellant who had resorted to the said I. A. No. 2 had filed the instant appeal having been aggrieved with the said order passed by the learned District Judge. ( 5 ) THE learned Counsel appearing for the appellant Mr. Patil had taken me through the backdrop of the case. ( 5 ) THE learned Counsel appearing for the appellant Mr. Patil had taken me through the backdrop of the case. It was argued by him that the learned District Judge was too technical while dealing with the I A. No. 2 that came to be transferred by this Court to him, inasmuch as he had rejected the said I. A. on the sole ground that the provision of law quoted in the application was erroneous, it was also pointed out that the learned Counsel for the appellant then on record in the original appeal RFA No. 20/1978 had filed the application, under Section 151 of C. P. C. whereas he would have filed that under Order 41 Rule 17 of C. P. C. He had also argued that the learned district Judge would have appreciated that the original appeal filed by the appellant before the High Court came to be dismissed for the reason that the Counsel on record was held up in the other Court Hall and this Court in the matter of entertaining such applications was quite liberal even at that point of time. He had also added that, the particular approach of this Court, the learned District Judge was not very well informed about and that in that circumstance, he might have dismissed the I. A. in question ( 6 ) IT was also pointed out by Mr. Patil that high stake was involved in the appeal and when the original appeal came to be dismissed for default, the appellant had no go, than to recourse to the said I. A. No 2 before this Court in the said RFA and that the position would have been very well appreciated by the learned district Judge while dealing with the I. A. by him. ( 7 ) IN the absence of the other side, 1 have considered the arguments advanced by the learned Counsel for the appellant Mr. Patil, I have also gone through the impugned order here under challenge with the assistance of Mr. Patil. On going through the same, it also appears to me that the learned District Judge had rejected the I. A. solely on the ground that the same was filed under a wrong provision of law. Of course, he had also relied upon certain decisions cited before him They, are AIR 1920 madras 640 and AIR 1920 Sindh 34. Patil. On going through the same, it also appears to me that the learned District Judge had rejected the I. A. solely on the ground that the same was filed under a wrong provision of law. Of course, he had also relied upon certain decisions cited before him They, are AIR 1920 madras 640 and AIR 1920 Sindh 34. As I see, when the first decision is not strictly on the point, the second decision is on the point that, when the appeal is dismissed, unless reasonable cause is shown in the application filed to recall the order of dismissal of an appeal for default, the said should not be restored, I do not think the said decision what the District judge had relied upon have got any relevance in the instant case in hand. As I further see the learned District Judge had also placed reliance on Rule 17 (1) (c), wherein it had been provided therein that the fact that the pleader of a party when held up in some other case is no ground for adjourning the case. As I see, it was not at all the case that adjournment was sought for on that ground before this court in the Appeal rfa No. 20/78, for what was prayed for in filing I. A. No. 2 under Section 151 was to restore the appeal in question , dismissed for default due to non-presence of the Counsel on record. ( 8 ) THE learned Counsel for the appellant mr. Patil had also submitted that this Court is liberal in the matter of entertaining such applications when the original matters are dismissed for default in the circumstances that the counsel is held up in some other Court Hall. That in fact is the approach of this Court and on many occasions, I myself entertained such applications for the purpose of restoration of the original matters dismissed for default; let apart, as submitted by the learned counsel for the appellant Mr. Patil, the learned District Judge was too technical in the matter of entertaining the application before him. In this context, I have to observe that there are plethora of decisions to say that quoting of wrong provision of law is not a ground for dismissal of the applications and that what matters is the substance and the prayer in the applications. In this context, I have to observe that there are plethora of decisions to say that quoting of wrong provision of law is not a ground for dismissal of the applications and that what matters is the substance and the prayer in the applications. ( 9 ) IN that view of the matter, I feel that the learned District Judge was in error in dismissing I. A. No. 2. in passing the impugned order. ( 10 ) IN the result, the impugned order dated 29. 10. 1997 in R. A. No. 15/89 passed by the Additional District Judge, Bidar stands set-aside; in the process, the appeal in question stands restored on his file. Let him treat the said appeal as the one renumbered as against the R F A. No. 20/78 on the file of this court (now before him) and dispose of the same in consonance with law ( 11 ) IN view of the circumstance that the original matter is of the year 1978, let the District Judge dispose of the matter within a period of 4 months from the date of communication of this order of course after issuing notices to the parties concerned and hearing them in the appeal. Appeal allowed. --- *** --- .