Allowed

M/S. Deepica Residency Welfare Association of Residents (Dwar) v. M/S. Gruha Deepica Builders

Karnataka HC18 Mar 2024MFA/2718/2020

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Trial Court's rejection of an application to condone a 93-day delay. The Court found that while the limitation should technically run from the suit's dismissal, the change in the association's management explained the delay, warranting condonation.

What did the court decide?

Impugned order dated 20.11.2019 is set aside; application for condonation of delay of 93 days is allowed; Trial Court directed to dispose of petition within six months.

M/S. Deepica Residency Welfare Association… — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:11130 MFA No. 2718 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 2718 OF 2020 (CPC)

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BETWEEN:

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M/S. DEEPICA RESIDENCY WELFARE ASSOCIATION OF RESIDENTS (DWAR) HAVING OFFICE AT SY.NO.91/6, NAGARAVARAPALYA MAIN ROAD, C.V. RAMAN NAGAR POST, BENGALURU-560093, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE SRI. M. KALIAMOORTHI, AGED 68 YEARS …APPELLANT

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(BY SMT. BHARGAVI K.L., ADVOCATE FOR SRI. MOHANA KUMARA S.B., ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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M/S. GRUHA DEEPICA BUILDERS A REGISTERED PARTNERSHIP FIRM HAVING OFFICE AT NO.56, NANJAPPA CIRCLE, NEAR BEL, VIDYARANYAPURA, BENGALURU-560097, REPRESENTED BY ITS PARTNERS DR. K.V. NAGESHWARA RAO SMT. K. LAKSHMI KIRAN, SRI. N. VENKATASUBBA RAO

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DR. K.V. NAGESHWARA RAO S/O LATE K. RAMAKRISHNA RESIDING AT FLAT NO.97/A, MLA'S COLONY, BANJARA HILLS ROAD, NO.12, HYDERABAD-500034

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SMT. K. LAKSHMI KIRAN W/O DR. K.V. NAGESHWARA RAO RESIDING AT FLAT NO.97/A,

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2 - NC: 2024:KHC:11130 MFA No. 2718 of 2020

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MLA'S COLONY, BANJARA HILLS, ROAD NO.12, HYDERABAD-500034 AGED 48 YEARS

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SRI. N. VENKATASUBBA RAO S/O SRI RAMA RAO, AGED 54 YEARS, RESIDING AT KOVVALI (V) DENDALURU (M) WEST GODHAVARI DISTRICT ANDHRA PRADESH STATE (RESPONDENTS 2 TO 4 ARE PARTNERS OF FIRST RESPONDENT FIRM THEY ARE ALSO AVAILABLE AT NO.56 AND 587, NANJAPPA CIRCLE, NEAR BEL, VIDYARANYAPURA, BENGALURU-560097

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SRI. R.K. SURENDRA BABU S/O SRI. KRISHNAIAH CHETTY, AGED 62 YEARS, RESIDING AT NO.85, GROUND FLOOR, NAGASANDRA MAIN ROAD, TATA SILK FARM, BENGALURU-560028.

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…RESPONDENTS (NOTICE SE RVED ON RESPONDENT NO.5; VIDE ORDER DATED 11.03.2024, SERVICE OF NOTICE TO RESPONDENT NOS.1 TO 4 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(C) READ WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED 20.11.2019 PASSED IN MISC.NO.938/2016 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH40), DISMISSING IA NO.1 FILED UNDER SECTION 5 OF THE LIMITATION ACT, CONSEQUENTLY, DISMISSING THE PETITION FILED BY THE PETITIONER UNDER ORDER 9 RULES 4 AND 9 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC:11130 MFA No. 2718 of 2020

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JUDGMENT

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This appeal is filed challenging an order dated 20.11.2019 passed by XXXIX Additional City Civil and Sessions Judge, Bengaluru in Misc.No.938/2016 by which, an application filed by the appellant under Section 5 of the Limitation Act for condonation of delay in filing the miscellaneous petition was rejected resulting in the dismissal of the miscellaneous petition.

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The appellant filed O.S.No.5604/2013 for various reliefs against the respondents herein, who were the developers of residential apartments, from whom the members of the appellant had purchased flats. The suit was contested by the respondents and the Trial Court framed the issues and set down the case for trial. The suit was listed for crossexamination of PW.1 on various dates i.e., on 24.03.2016, 06.04.2016, 22.06.2016 and thereafter on 21.07.2016. Since PW.1 was not present on the said dates, the suit was dismissed for non-prosecution. Later, a petition was filed under Order IX Rules 4 and 9 read with Section 151 of Civil Procedure Code belatedly, along with an application for condonation of delay of 93 days in filing the petition.

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NC: 2024:KHC:11130 MFA No. 2718 of 2020

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The application for condonation of delay was opposed by the respondents, following which, the Trial Court recorded the evidence of PW.1 and he marked Exs.P1 and P2. The Trial Court held that the suit was dismissed for nonprosecution on 21.07.2016 and therefore, the limitation to file a petition for restoration of the suit had to be reckoned from the date of dismissal of the suit and not from the date of the knowledge. It also held that since the petitioner/appellant herein failed to satisfactorily explain the reasons for delay, the application for condonation of delay did not merit consideration and consequently, it rejected the application and consequently dismissed the petition.

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Being aggrieved by the said order, this appeal is

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filed.

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The learned counsel for the appellant submitted that after the suit was listed for cross-examination of PW.1, there was change in guard in the managing committee of the appellant and therefore, the persons who were responsible to adduce evidence could not be secured. The learned counsel contended that dismissal of the suit came to the knowledge of

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5 - NC: 2024:KHC:11130 MFA No. 2718 of 2020

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the appellant on 02.11.2016, when it contacted its advocate and thereafter, the appellant decided to file the petition. The learned counsel therefore, contended that the delay in filing the application was satisfactorily explained and therefore the Trial Court must have been considerate in considering the cause shown for the delay in filing the petition.

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The respondents though served with the notice, are

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absent.

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The suit was dismissed on 21.07.2016 for nonprosecution. The appellant's association was represented by a counsel and therefore, the appellant cannot contend that the limitation to file the petition for restoration of the suit had to be reckoned from the date of knowledge. When once the appellant had participated in the suit, the limitation ought to be reckoned from the date of dismissal of the suit. Therefore, the Trial Court was right in considering the period between 21.07.2016 till the date of filing the petition, excluding 30 days there from, as the delay. Be that as it may, since the appellant has represented the interest of a large number of members and since it was stated that there is a change in the guard in the association

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6 - NC: 2024:KHC:11130 MFA No. 2718 of 2020

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and hence, there was communication gap between the counsel who represented the appellant as well as the appellant, the cause shown for the delay is probable and therefore deserves to be accepted. The impugned order passed by the Trial Court refusing to condone the delay of 93 days in filing the petition in Misc.No.938/2016 therefore, warrants interference.

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Consequently, this petition is allowed . The impugned order dated 20.11.2019 passed in Misc.No.938/2016 by the Trial Court is set aside and the application filed by the appellant for condonation of delay is allowed and the delay of 93 days in filing the Misc.No.938/2019 is condoned. Now that the delay is condoned, the Trial Court shall consider the miscellaneous petition in accordance with law and dispose off the same, as early as possible, which at any rate shall not exceed six months from the date of receipt of a copy of this order.

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Sd/JUDGE

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List No.: 1 Sl No.: 33

M/S. Deepica Residency Welfare Association of Residents (Dwar) v. M/S. Gruha Deepica Builders

Case brief

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M/S. Deepica Residency Welfare Association of Residents (Dwar) v. M/S. Gruha Deepica Builders

Case brief

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