ORDER : V SRISHANANDA, J. 1. Heard Sri. H. Kantharaja, learned senior counsel for Sri. H.K. Kenchegowda, learned counsel for the revision petitioner and Smt. Hemalathan Mahishi, learned counsel for the respondents No.1 and 2. 2. Defendant is the revision petitioner challenging the restoration of the suit by allowing the Misc. No.6/2021 filed under Order IX Rule 9 of Code of Civil Procedure for restoration of the suit in O.S.No.1200/2009 which was dismissed for non prosecution by Order dated 19.02.2021. 3. Facts in the nutshell which are utmost necessary for disposal of the present revision petitioner as under: 3.1 A suit came to be filed before the Civil Judge (Senior Division), Bengaluru District which was re-numbered after the vacation as O.S. No.1200/2009 with the following reliefs in respect of the following properties (hereinafter referred to as the 'suit property') PRAYER WHEREFORE, the plaintiffs most respectfully pray that this Hon'ble court be pleased to pass judgement and decree for :- (a) Partition and separate possession of plaintiff's 1/6th share each in the schedule properties by metes and bounds holding that the will dated 19/8/2005 alleged to have been executed by the Araledibbada Thimmaiah in relation to the schedule properties is not binding on the plaintiffs., (b) Award mesne profits from the date of suit till the date of handing over of possession of the plaintiff's share by metes and bounds, (c) Grant such other and further relief as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity. SCHEDULE All that piece and parcel of agricultural land measuring 3 acres 19 guntas (including the kharab of 20 guntas), in Sy.No.81/3A, of Thotadaguddadahalli village, Dasanapura hobli, Bangalore north taluk, and bounded on the East by: Land of Narasimhaiah, West by: Road, North by: Land of Thigalara Ganganna, South by: Lands of Rangappa, Bylappa and llanumanthappa. 3.2 The suit for partition after institution, was being contested in view of the written statement filed by the defendant and issues came to be framed by the Trial Court on 27.01.2012. 3.3 Despite granting sufficient time, plaintiff did not appear before the Court. Therefore left with no alternative learned Trial Judge dismissed the suit for non prosecution by Order dated 19.02.2021. 3.3 Despite granting sufficient time, plaintiff did not appear before the Court. Therefore left with no alternative learned Trial Judge dismissed the suit for non prosecution by Order dated 19.02.2021. 3.4 The plaintiff filed an application under Order IX Rule 9 of the Code of Civil Procedure which was registered as Miscellaneous No.6/2021 seeking to set-aside the dismissal of the suit for non prosecution. Said Miscellaneous petition was numbered as Miscellaneous Case No.6/2021 and was contested by the defendant. 3.5 Learned Trial Judge recorded the evidence of the parties wherein the plaintiffs contended that the suit could not be proceeded diligently on account of the ill- health suffered by the plaintiff and therefore, sought for restoration. 3.6 The same was opposed by the defendant by not only cross-examining the witness but also demonstrated that the alleged ill-health did not come in the way of the participation of the plaintiff in the suit. 3.7 Learned Trial Judge after taking note of the rival contentions of the parties, in view of the settled principles of law that such petitions must be dealt in liberal manner, allowed the petition by imposing the cost of Rs.5,000/- by Order dated 04.01.2024. 4. The veracity of the said Order is called in question in this revision on the following grounds: That the impugned Order dt:04.01.2024 in Misc. Petition No.06/2021 passed by the learned II Addl. Senior Civil Judge and JMFC, Nelamangala, Bangalore Rural District, at Annexure-N is, contrary to law, perverse as well as both the oral and documentary evidence on record and the Trial Court has failed to exercise the judicial discretion/powers vested with it. Hence the impugned order is calls for interference of this Hon'ble Court. That as could be seen from the order dt: 11.02.2021, the Trial Court has granted one more opportunity to the Plaintiffs / Respondent No.1 and 2 to tender herself for cross-examination and adjourned the case to 19.02.2021, but on 19.02.2021 also the Respondent No.1 and 2/ Plaintiffs did not appear or tender herself for cross examination before the Trial Court as directed on:11.02.2021 and hence, on: 19.02.2021 the Trial Court was pleased to pass the orders by holding that the Plaintiff/PW1 and his counsel are remaining absent continuously, it appears the Plaintiffs are not interested in prosecuting the case, hence, examination-in-chief of PW1 is held expunge, suit is dismissed for non-prosecution". The orders passed by the Trial Court on: 19.02.2021 is in accordance with law, which needs to be upheld under the facts and circumstances of the case, otherwise, it would amount to miscarriage of justice. That, after completion of the pleadings, on 27.01.2012 the Trial Court was pleased to frame the issues in the suit and posted the same to 06.03.2012 for Plaintiff's evidence. On 06.03.2012 and 18.04.2012 the said suit was set-down for Plaintiffs evidence and they sought time for their evidence. On 26.06.2012 the Respondent No.1/ Plaintiff No.1-Smt. Nagamma examined as PW-1 and on 04.08.2012, 17.09.2012, 09.11.2012, 11.01.2013 the suit was set-down for further examination-in-chief of the PW-1, but all the above said dates of hearing, they have unnecessarily sought for time and not at all proceeded in the suit. On 02.03.2013, the PW-1 got marked 3 documents as Ex. P1 to 3 and again sought for time for further examination-in-chief of PW-1 and accordingly, the Trial Court was pleased to adjourn the case to 19.04.2013 and 05.07.2013. Subsequently, on 30.07.2013, the Trial Court was pleased to post the above case to 23.08.2013 for cross examination of PW-1. From the year, 2013, the suit was adjourned again and again for cross-examination of PW-1 and thus sufficient opportunities were granted to the Plaintiffs/ Respondent No.1 and 2 to conduct the case, but the Trial Court has not at all appreciated this aspect of the matter in right perspective while passing the impugned orders and hence the impugned order is not sustainable in law and is liable to be set-aside. That, in fact, in the month of February-2021 there was no pandemic situation as contended by the Respondent No.1 and 2. The courts were opened and functioning and the litigants were permitted to appear before the Trial Courts to conduct the cases by adducing evidence and tender themselves for cross-examination as per the SOP. There was no impediment as per the SOP of this Hon'ble Court as well as law to the Respondent No.1 and 2 to appear before the Trial Court to proceed with the suit and the same are made as grounds only to seek restoration of suit, but the Trial Court has not at all properly appreciated this aspect of the matter in right perspective and hence the impugned order is liable to be set-aside. That the conduct of the Respondent No. 1 and 2 in conducting the suit was not fair and proper. Till the date of dismissal of the suit in O S No.1200/2009, Respondent No.1 and 2 did not appear and conduct the suit in diligent manner. The Trial Court has not at all appreciated this aspect of the matter in right perspective while passing the order impugned and hence the impugned order is unsustainable in law and liable to be set-aside. That the Respondents No. 1 and 2 have produced and marked the Medical Records at Ex. P-5 and Ex. P-6 in support of their case. As could be seen from the Medical Reports at Ex. P-5 and Ex. P-6, which are having dates of 16.10.2020 i.e., 4 to 5 months prior to the order of dismissal of the suit. The Respondents No.1 and 2 have not placed any Medical Records to show that she was suffering from ill-health on the date of dismissal of suit as contended by her. The Trial Court has not at all appreciated this aspect of the matter in right perspective while passing the order impugned and hence the impugned order is unsustainable in law and liable to be set-aside. That the Respondent No.1 and 2 have specifically contended in the Petition as well as in the evidence that the matter was posted for cross-examination of PW-1 on: 19-02-2021; when the day was fixed for her evidence, due to pandemic situation in the year 2020 and the existing Standard of Procedure Operating in the Courts, the counsel on record informed that the parties were not permitted to enter into the court premises and to establish the same she has not placed any cogent evidence/ materials before the Trial Court. In absence of such cogent evidence on record, the Trial Court has committed a serious error in restoring the suit in its original stage by allowing the Miscellaneous Petition as per the impugned order at Annexure-N, which is unsustainable in law and liable to be set-aside. In absence of such cogent evidence on record, the Trial Court has committed a serious error in restoring the suit in its original stage by allowing the Miscellaneous Petition as per the impugned order at Annexure-N, which is unsustainable in law and liable to be set-aside. That, further the Respondents No.1 and 2 contended that on 19-02-2021, the Respondent No.2 came near the court and tried to contact her counsel over her phone and she was unable to contact the counsel and when she enquired the court officials, they had informed the Respondent No.2 that the parties could only be allowed inside the court premises subject to issuance of entry pass by their respective advocates and to establish the same she has not placed any evidence before the Trial Court. More-over, if so, there was no impediment to her to get the Entry Pass from her Advocate. In absence of such evidence on record, the Trial Court has committed a serious error in allowing the Miscellaneous Petition as per the impugned order at Annexure-N, which is unsustainable in law and liable to be set-aside. That on 19.02.2021 the Trial Court was pleased to pass the order, dismissing the suit of the Petitioners/ Plaintiff in OS No.1200/2009 on the ground of non-prosecution, which is in accordance with law and the Petitioners have not made out any valid grounds to set-aside the order dt:19.02.2021 and hence, the impugned order at Annexure-N, restoration of the suit by allowing the Misc. Petition No.06/2021 is illegal, contrary to both the oral and documentary evidence on record and hence the same is liable to be set-aside. That, the Trial court has not at all appreciated the evidence and admissions of the PW-1 made during the course of her cross-examination. The Trial Court has also not appreciated the Evidence adduced by the Petitioner before the Trial Cout. The Trial Court has not assigned any valid and cogent reasons to restore the suit under the impugned Order and hence the same is illegal, contrary to both the oral and documentary evidence on record and hence the same is liable to be set-aside. That the fixed Court Fee is of Rs.20/- is paid on the Memorandum of Civil Revision Petition under Schedule -II of Article 11 (q) (iii) of the Karnataka Court Fee and Suits Valuation Act. That the fixed Court Fee is of Rs.20/- is paid on the Memorandum of Civil Revision Petition under Schedule -II of Article 11 (q) (iii) of the Karnataka Court Fee and Suits Valuation Act. Thus, looking at any angle, the impugned order passed by the Trial Court at Annexure-N is illegal, contrary to both the oral and documentary evidence on record, hence the same is unsustainable in the eye of law and is liable to be set aside. The Petitioners have not preferred any Petition or such other Petitions earlier to this for the reliefs sought for in this Civil Revision Petition. 5. Sri. H. Kantharaja, learned Senior Counsel reiterating the grounds and in the petition, contented that plaintiff is an utter liar and there are no medical documents to establish that the plaintiff was suffering from ill-health so as to not to participate diligently in the suit. 6. Therefore, the learned Trial Judge restoring the suit by allowing the miscellaneous petition filed under Order IX Rule 9 of the Code of Civil Procedure has resulted in miscarriage of justice besides disrupting the rights of the parties after a long period of time and sought for allowing the revision petition. 7. Per contra, Smt. Hemalatha Mahishi would contend that it is settled principles of law that whenever a suit for partition or a right in respect of an immovable property is adjudicated, Court must be liberal in accepting the reasons for non-appearance and the suits are required to be disposed of by passing a considered judgment and not by default and sought for dismissal of the revision petition. 8. Having heard the arguments of both sides this Court perused the material law and record meticulously. 9. On such perusal of the material law and record, it is crystal clear that the suit was not contested diligently by the plaintiff. 10. As such, the suit came to be dismissed for non prosecution. A petition under Order IX Rule 9 of the Code of Civil Procedure was filed by the plaintiffs which was numbered as Miscellaneous Case No.6/2021. 11. Since the defendant opposed the restoration of the petition by filing the objections, enquiry was held with regard to the sufficient reasons for non appearing before the Trial Court. 12. A petition under Order IX Rule 9 of the Code of Civil Procedure was filed by the plaintiffs which was numbered as Miscellaneous Case No.6/2021. 11. Since the defendant opposed the restoration of the petition by filing the objections, enquiry was held with regard to the sufficient reasons for non appearing before the Trial Court. 12. In such enquiry, the petitioners the plaintiffs contended that the plaintiff was suffering from ill-health and therefore was unable to appear before the Court. 13. Learned Trial Judge considering the material evidence on record clearly recorded a finding that the alleged ill-health is not supported by medical documents. 14. Nevertheless, the learned Trial Judge exercising the discretionary power vested in it under Order IX Rule 9 of the Code of Civil Procedure, allowed the petition as the suit is required to be decided on merits and not on default, by imposing the cost of Rs.5,000/-. 15. Having noted the same, this Court is of the considered opinion that per se the reasons assigned by the plaintiffs are not satisfactory for restoring the suit. But it is settled principles of law that in such matters, Courts are required to be generous enough to accept the reasons for default and should not have a pedantic approach as right of a party needs to be decided on merits and not on default. 16. At the same time, the hardship that has been caused to the defendant cannot be lost sight of. Therefore, the imposition of cost of Rs.5,000/- in the considered opinion of this Court is not adequate in compensating the hardship suffered by the defendant in a long drawn litigation. 17. Therefore this Court is of the considered opinion that enhancing the cost in a sum of Rs.20,000 (Rs.5000/- + Rs.20,000/-=Rs.25,000/-) if the order of restoration is maintained, ends of justice would be met. 18. At the same time, since the suit itself is of the year 2009, a direction is also necessary to expedite the suit so as to put at rest the real controversy between the parties once and for all. 19. Accordingly, following order: ORDER (i) Civil Revision Petition stands disposed off. (ii) Impugned order is maintained by enhancing the cost of Rs.20,000/- (Rs.5,000/- already imposed plus Rs.20,000/-, total Rs.25,000/-) to be paid on or before 06.01.2026 (iii) Parties shall appear before the Court without further notice on 08.01.2026. 19. Accordingly, following order: ORDER (i) Civil Revision Petition stands disposed off. (ii) Impugned order is maintained by enhancing the cost of Rs.20,000/- (Rs.5,000/- already imposed plus Rs.20,000/-, total Rs.25,000/-) to be paid on or before 06.01.2026 (iii) Parties shall appear before the Court without further notice on 08.01.2026. Thereafter, the Trial Judge shall expedite the hearing and conclude the same as early as possible taking note of the fact that issues are already framed. (iv) Payment/deposit of the cost on or before 06.01.2026 is condition precedent for restoring the suit. (v) Ordered accordingly.