Allowed

Sri.Gurulingayya Shivayya Hiremath v. Sri.Murigeyya Shivayya Hiremath

Karnataka HC12 Mar 2021CRP/100011/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a civil revision petition under Section 115 CPC. The revision challenged an order condoning a 1712-day delay in filing an appeal. The Court held the condonation erroneous due to inordinate delay and lack of sufficient cause, setting aside the order and dismissing the appeal.

What did the court decide?

The order dated 21.01.2019 under Section 5 of the Limitation Act is set aside and dismissed; consequently, the appeal R.A. No. 62/2017 stands dismissed.

Sri.Gurulingayya Shivayya Hiremath Vs Sri.Murigeyya Shivayya… — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF MARCH 2021

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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C.R.P. NO. 100011/2019

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BETWEEN:

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SRI GURULINGAYYA SHIVAYYA HIREMATH, AGE: 58 YEARS, OCC.: AGRICULTURE, R/O SURANAGI, TQ: SHIRAHATTI, DIST: GADAG, PIN CODE 582 116.

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SRI SHANKRAYYA SHIVAYYA HIREMATH, AGE: 56 YEARS, OCC.: AGRICULTURE, R/O SURANAGI, TQ: SHIRAHATTI, DIST: GADAG, PIN CODE 582 116.

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PETITIONERS

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(BY SRI R.K. KULKARNI, ADVOCATE)

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AND:

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SRI MURIGEYYA SHIVAYYA HIREMATH, AGE: 74 YEARS, OCC.: AGRICULTURE, R/O SURANGI, TQ: SHIRAHATTI, DIST: GADAG BY HIS G.P.A. HOLDER CHANDRASHEKHAR MURGEYYA HIREMATH, AGE: 38, OCC.: PRIVATE EMPLOYEE, R/O: VEERABHADRESHWAR NAGAR, NEAR DANESHWARI NAGAR, VIDYAGIRI, DHARWAD-580 001, SINCE DEAD REP. BY LRS.

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1-A. SMT. NAGARATNAVVA, W/O MURIGEYYA HIREMATH, AGE: 60 YRS, OCC.: HOUSEHOLD WORK, C/O CHANDRASEKHAR MURIGAYYA HIREMATH, R/O VEERABHADRESHWAR NAGAR, NEAR DANESHWARI NAGAR, VIDYAGIRI, DHARWAD-580 004.

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: 2 :

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1-B. SMT. JAYASHEELA W/O GANGADHARAYYA HIREMATH, AGE: 36 YEARS, OCC.: HOUSEHOLD WORK, C/O CHANDRASEKHAR MURIGAYYA HIREMATH, R/O VEERABHADRESHWAR NAGAR, NEAR DANESHWARI NAGAR, VIDYAGIRI, DHARWAD-580 004.

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1-C. SHRI CHANDRASEKHAR AGE: 34 YEARS, OCC.: SERVICE, R/O VEERABHADRESHWAR NAGAR, NEAR DANESHWARI NAGAR, VIDYAGIRI, DHARWAD-580 004.

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SMT. RATNAVVA W/O SHIVAYYA HIREMATH, AGE: 78 YEARS, OCC.: HOUSEHOLD WORK, R/O YALLAPUR ONI, ONKAR CHOWK, HIREMATH CHAL, TQ & DISTRICT: HUBLI-580 001.

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SMT. HALLAVVA @ CHAMPAVATI, W/O GANGADARAYYA HIREMATH, AGE: 63 YEARS, OCC.: HOUSEHOLD WORK, R/O NEAR S.S. HIGH SCHOOL, SHIGALLI, TQ: SHIRAHATTI, DISTRICT: GADAG-582 116.

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SMT. GIRIJAVVA @ LALITHA, W/O FAKEERAPPA KODALIMATH, AGE: 53 YEARS, OCC.: HOUSEHOLD WORK, R/O GANESHPETH, SHIGALLI, TQ: SHIRAHATTI, DISTRICT: GADAG-582 116.

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SRI REVANSHIDAYYA, S/O MURIGEYYA HIREMATH, AGE: 76 YEARS, OCC.: AGRICULTURE, R/O SURANAGI, TQ: SHIRAHATTI, DIST: GADAG-582 116.

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RESPONDENTS

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(BY SRI RAMESH B. CHIGARI, ADVOCATE FOR R1(A-C) SRI K.H. BAGI, ADVOCATE FOR R2-R5)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 21.01.2019 PASSEDIN R.A. NO. 62/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, LAXMESHWAR & ETC.

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THIS CIVIL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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: 3 :

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ORDER

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The respondents No.1 and 2 in R.A. No. 62/2017 have preferred this revision petition u/s 115 of CPC.

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The events that have led to preferring this revision are as follows:

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The petitioners herein instituted a suit for partition, O.S. No. 112/2012, against the respondents in the Court of Civil Judge at Laxmeshwar. The respondents received the summons, appeared before the Court, but did not file written statement inspite of sufficient chances being given. This resulted in suit being decreed on 05.11.2012. Challenging this judgment and decree, the first defendant, through his son and power of attorney holder preferred an appeal, R.A. No. 62/2017 in the Court of Senior Civil Judge, Laxmeshwar. There was a delay of 1712 days in filing the appeal and seeking condonation of delay, the respondents filed an application u/s 5 of the Limitation Act. The appellate Court allowed the application on

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: 4 :

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costs of `3,000/- by passing an order on 21.01.2019 and this is the order challenged in this revision petition.

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Sri R.K. Kulkarni, learned counsel for the petitioners submitted that the Court below did come to conclusion that respondents failed to make out sufficient cause for condoning delay, yet it allowed the application giving a reason that the rejection of application u/s 5 of the Limitation Act would consequently result in dismissing the appeal and such a situation would may lead to preferring a second appeal before the High Court. To avoid such a circumstance, delay could be condoned. It is his argument that the trial court has wrongly exercised its jurisdiction in allowing the application for condonation of delay. Having come to conclusion that sufficient cause had not been made out, the Court below ought to have rejected the application. This is nothing but wrongly exercising jurisdiction and therefore there is need for interference u/s 115 CPC.

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: 5 :

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Learned counsel for the respondents Sri Ramesh

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Chigari, submits that the Court below has not committed any error in condoning delay, it has noticed that the appeal arose out of a suit for partition in which substantial interest of the parties are involved. In order to meet ends of justice, the Court below condoned the delay. There is no scope for interference.

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Having heard both sides, it may be stated that though it is a well established principle that while deciding an application for condonation of delay, liberal approach has to be adopted for advancing justice, it may also be stated that the reasons stated in the affidavit must appear to be prima facie acceptable or believable. Sufficient cause should be shown for the delay. If the delay is not inordinate and deliberate, discretion can be exercised by the Court for condoning delay. In the case of Esha Bhattacharjee V. Managing Committee of Raghunathpur Nafar

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Academy and Others (2013) 12 SCC 649 , the

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: 6 :

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Supreme Court has set out certain principles, of which

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four principles may be extracted here.

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

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(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.

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(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.

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(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.

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In the case on hand, the affidavit does not disclose

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the reason for delay at all. The suit was decreed on 05.11.2012. Affidavit does not disclose when actually the appellant came to know of the decree passed by the trial Court. The deponent in the affidavit is the power of attorney holder of the appellant. He simply stated that his father did not come to know about the decree in the suit. On 24.07.2017, his mother told him about the suit and asked him to go to Laxmeshwar and enquire about it. He came to Laxmeshwar and met his lawyer on 09.08.2017 and came to know about the dismissal of the suit on 05.11.2012. Thereafter he preferred the appeal. It is also stated that since his father was aged and had impaired vision, he was asked to prefer an appeal.

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The Court below has recorded reasons that the appellant, i.e., respondent No.1 herein, appeared before the Court on 06.09.2012 and made an application under Order IX Rule 7 CPC seeking to set aside the

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: 8 :

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order of placing him exparte. It was allowed and he was asked to file written statement on 01.10.2012, but he did not. The Court below has also observed that the appellant took treatment at Vasan Eye Care on 04.06.2012 and then in the year 2017, he took treatment at Dharmasthala Manjunatheshwara Medical College & Hospital, Dharwad. Referring to these dates of treatment, it is the clear conclusion of the Court below that appellant failed to make out sufficient grounds for condoning delay of 1712 days.

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If the Court below was of clear opinion that sufficient grounds were not forthcoming, he should have dismissed the application made u/s 5 of the Limitation Act. Rather, he has given a reason that if application is ultimately rejected, accompanying appeal should also be dismissed and it might lead to filing of second appeal before the High Court and in order it, delay could be condoned on cost.

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: 9 :

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The approach of the Court below is not correct. If

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inordinate delay is there and there are no grounds to condone delay, application should be dismissed. The consequences that might follow should not be taken into consideration. This is an error committed by the Court below. Even otherwise, the delay of 1712 days is inordinate. What can be made out is utter negligence in keeping quite for a long time. For this reason, delay cannot be condoned at all. Therefore, revision petition is allowed. The order dated 21.01.2019 on I.A. No. 1 filed u/s 5 of the Limitation Act is set aside. The said application is dismissed. Consequently, the appeal R.A. No. 62/2017 also stands dismissed.

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SD/JUDGE

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bvv

Sri.Gurulingayya Shivayya Hiremath v. Sri.Murigeyya Shivayya Hiremath

Case brief

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Sri.Gurulingayya Shivayya Hiremath v. Sri.Murigeyya Shivayya Hiremath

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