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D.V. Shindagi Vs. Saraswatibai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 502 of 1967
Judge
Reported inAIR1969Kant77; AIR1969Mys77; ILR1968KAR824; (1968)2MysLJ200
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantD.V. Shindagi
RespondentSaraswatibai and ors.
Excerpt:
- constitution of india articles 226 & 227; [anand byrareddy, j] bangalore-mysore infrastructure corridor project (bmic project) petitioners frame-work agreement with government of karnataka - inordinate delay on the part of the respondents with regard to shifting or diverting certain utilities which are clashing with the right of way of the link road and the peripheral road failure to perform its obligation by respondents (bwssb etc.,) writ petition held, having regard to the pronouncements of high court as well as the supreme court insofar as the present project is concerned, it would be inconsistent if this petition were to be rejected on the ground that it would fall in the realm of private contract law or that there is an alternate remedy of the petitioners insofar as any..........pressed. i am also of the opinion that the statement about the absence (extent?) of the court's power stated in such wide terms by byers j. cannot be accepted. if in spite of the fact that section 115 contains no express power for dismissal of a revision petition for default, byers, j. could come to the conclusion that that such power is included in the power to make such order as the court may deem fit, the logical conclusion from the same premise should be or should have been that the said expression is wide enough to confer upon the court the power to restore a dismissed matter or permit a rehearing.3. apart from these technical considerations, the exercise of the power of revision under section 115 of the code of civil procedure is intended to subserve principles of justice and.....
Judgment:
ORDER

1. When I disposed of the Civil Revision Petition by my order dated 20th June 1968 whereby I set aside the order of the lower Court, Mr. Hiremath, the learned counsel for the respondents, was not present. He has made the above application explaining the circumstances of his absence and praying that he may be given a hearing after restoring the revision petition.

2. Though it was initially contended that I should apply the principles stated by Byers, J. in the case reported in A. Ramamurthy Iyer v. Meenakshisundarammal AIR 1945 Mad 103 which are said to have been applied by another learned Judge of this Court in some other matters and hold that I have no power to restore a revision petition disposed of for default or in the absence of counsel, the objection was not seriously pressed. I am also of the opinion that the statement about the absence (extent?) of the court's power stated in such wide terms by Byers J. cannot be accepted. If in spite of the fact that Section 115 contains no express power for dismissal of a revision petition for default, Byers, J. could come to the conclusion that that such power is included in the power to make such order as the Court may deem fit, the logical conclusion from the same premise should be or should have been that the said expression is wide enough to confer upon the Court the power to restore a dismissed matter or permit a rehearing.

3. Apart from these technical considerations, the exercise of the power of revision under section 115 of the Code of Civil Procedure is intended to subserve principles of justice and should a Court of justice, specially High Court exercising the power under said section, feel that interests of justice do require that a matter disposed of for default should be reheard, I do not think fetters can be placed on court's power larger than those expressly mentioned in the section itself.

4. I have heard Mr. Hiremath on the merits of the revision petition. He frankly stated that so far as the recasting of issue No.3 by the lower Court is concerned, its opinion is not sustainable. Only one matter in which he wanted me to take a different view than I had done on the last occasion is that the document mentioned in the 2nd issue was in the nature of a promissory note and that, therefore, shifting of the burden to the defendant on the ground that he had admitted the execution thereof was correct and that, therefore, I should not have interfered with that part of the order of the Munsif.

5. After analysing the language employed in the pleadings which Mr. Hiremath read in extenso before me. I could not find sufficient material to support the statement that the plaintiff had made out or stated in categorical terms that the document referred to in the 2nd issue was indubitably a promissory note.

6. I do not, therefore, find sufficient reason to take a different view than the view already taken by me in my order dated 20th June 1968.

7. I, therefore, leave the said order as it is and dismiss the I. A. II.

8. Order accordingly.


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