Dismissed

K B Dhananjaya v. Smt Y S Padmavathi

Karnataka HC5 Feb 2021CRL.RP/253/2018

Case brief

AI extract

What is this about?

The Kerala City Sessions Judge dismissed an application for condonation of delay in filing a criminal revision petition. The High Court, upholding the trial court's view, found the prolonged delay unjustified due to lack of bona fide efforts to comply with a prior compromise agreement.

What did the court decide?

The application for condonation of delay and the criminal revision petition were dismissed.

K B Dhananjaya Vs Smt Y S Padmavathi — Civil Procedure and Limitation | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 05^TH DAY OF FEBRUARY, 2021

¶3

BEFORE

¶4

THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

¶5

CRIMINAL REVISION PETITION NO.253 OF 2018

¶6

BETWEEN:

¶7

K B DHANANJAYA, S/O LATE BOMMALINGEGOWDA, AGED ABOUT 52 YEARS, OCC: COOLIE, R/AT KOLAGUNDA VILLAGE, JAVAGAL HOBLI, ARASIKERE TALUK, HASSAN DISTRICT-573125. ...PETITIONER

¶8

(BY SRI G.M.ANANDA, ADVOCATE)

¶9

AND:

¶10

SMT Y S PADMAVATHI, W/O K B DHANANJAYA AGED ABOUT 47 YEARS, R/AT YALAGUNDA VILLAGE SALAGAME HOBLI HASSAN TALUK AND DISTRICT-573125.

¶11

STATE BY BELUR POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001. …RESPONDENTS

¶12

(BY SRI K NAGESHWARAPPA, HCGP FOR R2,

¶13

¶14

SRI P.D.VISHWANATH, ADVOCATE FOR R1)

¶15

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 21.12.2011 PASSED BY THE ADDITIONAL SESSIONS JUDGE AND THE PRESIDING OFFICER, FAST TRACK COURT-1, AT HASSAN IN CRIMINAL APPEAL NO.49/2007 AND IMPUGNED ORDER OF JUDGMENT AND SENTENCE DATED 04.04.2007 PASSED BY THE CIVIL JUDGE (JR.DN) AND JMFC, BELUR CONVICTED AND SENTENCED TO UNDERGO 2 YEARS OF SIMPLE IMPRISONMENT OF THE OFFENCE UNDER SECTION 494 OF IPC IN C.C.NO.1011/2000 AND TO PAY R2.4000/- AS FINE AND IN DEFAULT OF FINE AMOUNT HE SHALL UNDER S.I FOR 6 MONTHS.

¶16

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING THROUGH PHYSICAL HEARING:

¶17

ORDER

¶18

Heard learned counsel representing the petitioner from the

¶19

legal services authority and learned counsel for the respondent.

¶20

I.A.1/208 is under Section 5 of the Limitation Act for

¶21

condonation of delay of 1807 days in filing the petition. In support of the application the petitioner has filed an affidavit wherein it is stated that he had preferred Criminal Appeal No.49/2007 before the Sessions Judge and FTC-I, Hassan, challenging the judgment and sentence dated 04.04.2007 passed by the Civil Judge (Jr. Dn.) and JMFC, Belur, sentencing

¶22

¶23

him to undergo imprisonment for a period of two years in C.C. No.1011/2000 for the offence punishable under Section 494 IPC, but the appeal preferred by him was dismissed by the Sessions Court and confirmed the order of conviction passed by the trial Court. Being aggrieved by the said order the petitioner has preferred the revision petition. Further it is stated that the petitioner had compromised with respondent No.1 – complainant in Execution Petition No.58/2006 before the Principal Civil Judge, Arasikere. Thus, he was under the impression that the respondent might have withdrawn the case. As such he did not make any attempts to know about further developments. When the police started visiting his village he came to know about the dismissal of the appeal. Thereafter he contacted his counsel. Since he was in financial difficulty he was unable to file the revision petition immediately. The delay caused in filing the revision petition is not deliberate of intentional one.

¶24

The first respondent has filed objection denying the averments made in the affidavit. Further it is stated that the

¶25

¶26

grounds stated in the affidavit are false and concocted. Even after compromise the revision petitioner being the husband has not fulfilled his obligation and has not complied with the terms of the compromise. There is no sufficient cause to condone the inordinate delay of 1807 days. Revision petitioner has got sufficient sources of income to make the payment and he has not handed over any of the properties mentioned in the compromise petition. There are no valid grounds to condone the delay.

¶27

Having heard the submission of the learned counsel for the petitioner and learned counsel for the first respondent this Court has gone through the records.

¶28

It is pertinent to note that the criminal appeal filed before the Sessions Court (FTC Court) was disposed of on 21.12.2011. But the present revision petition is filed on 01.03.2018. Thus it is evident that there is inordinate delay of 1807 days in filing the appeal. The reasons assigned for condonation of delay are that the petitioner was under the

¶29

¶30

impression that in view of the compromise that had taken place in Execution Petition No.58/2006 before the Arasikere Court, the respondent accused might have withdrawn the case. Therefore he did not prosecute his appeal before the First Appellate Court (i.e., FTC Court). But in the instant case no records are forthcoming to show that the petitioner has complied with the terms of the compromise and has made efforts either to make payment of maintenance or to hand over any of the properties which are shown in the compromise petition.

¶31

In a decision reported in (2013) 12 SCC 649 (Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others) the Hon’ble Apex Court by referring to the various decisions has broadly culled out the following guidelines:

¶32

“ 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

¶33

¶34

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

¶35

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

¶36

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

¶37

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

¶38

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

¶39

¶40

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

¶41

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

¶42

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

¶43

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

¶44

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation

¶45

¶46

by taking recourse to the technicalities of law of limitation.

¶47

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

¶48

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

¶49

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

¶50

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

¶51

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the

¶52

¶53

base of individual philosophy which is basically subjective.

¶54

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.”

¶55

In the present case except the reason that he

¶56

was under the impression that his wife has withdrawn the case filed against him, no other convincing reasons forth coming in the affidavit. The concept of liberal approach has to encapsulate the conception of reasonableness and the same cannot be allowed a totally unfettered free claim as observed by the Hon’ble Apex Court. In the present case the delay is of not short duration. Even after filing the revision petition the counsel for the petitioner has not appeared. Considering his absence a Court notice was issued to the petitioner, but the same was not served as he was not residing at the address shown in his petition. In view of the police report, this Court has passed the

¶57

¶58

order dated 14.02.2020 appointing Sri G M Ananda, panel advocate of High Court Legal Services Committee for the petitioner. The conduct, the behaviour and attitude of the party or negligence are the relevant factors to be taken into consideration while condoning the delay. The Courts are required to weigh the scale of value of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach . As already stated above, there is no proper explanation for the long delay of 1807 days. Even the reasons stated in the affidavit are not justified to condone the delay. Accordingly, this Court pass the following –

¶59

ORDER

¶60

I.A.1/2018 is dismissed. Consequently, the revision

¶61

petition is dismissed.

¶62

In view of dismissal of the revision petition I.A.2/2018 do

¶63

not survive for consideration and the same is dismissed.

¶64

Sd/JUDGE

¶65

ykl

K B Dhananjaya v. Smt Y S Padmavathi

Case brief

What is this about?

What did the court decide?

K B Dhananjaya v. Smt Y S Padmavathi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. Anil Kumar S S Vs State of Karnataka by Psi

State by Police Inspector/Sho, Vs Renuka Prasad

Smt Mangala Gowri Vs Sri Muthuraj

Chikkanna Vs Narasegowda

M/S Reynolds Sound and Lighting Services Pvt. Ltd., Vs M/S Common Colors Entertainment Pvt. Ltd.

M/S R R Commercials Vs M/S Madanpalle Spinning Mills Ltd.