Allowed

Sri. Prasanna Kumar v. the Commissioner

Karnataka HC10 Sept 2024MFA/8641/2017

Case brief

AI extract

What is this about?

Plaintiff's suit was dismissed for default; his restoration application was rejected by the Trial Court on limitation grounds. The High Court held the 60-day delay was not inordinate and condoned it in the interest of justice, restoring the suit and setting aside the Trial Court's order.

What did the court decide?

Order dated 07.10.2017 on Misc.No.884/2014 set aside; delay of 60 days condoned; suit O.S.530/2014 restored to file.

Sri. Prasanna Kumar Vs the Commissioner — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:36851 MFA No. 8641 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 8641 OF 2017 (CPC)

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BETWEEN:

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SRI. PRASANNA KUMAR S/O. SRI. ASHWATHAIAH, AGED ABOUT 56 YEARS, R/AT NO.58, 6^TH MAIN, MIG, KHB COLONY, 2^ND STAGE, BASAVESHWARA NAGAR, BENGALURU-560 079.

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…APPELLANT

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(BY SRI G.B. NANDISH GOWDA, ADVOCATE FOR SRI R.B. SADASIVAPPA, ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY, K. P.WEST, BENGALURU-560 020.

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THE ASSISTANT EXECUTIVE ENGINEER BENGALURU DEVELOPMENT AUTHORITY, BDA COMPLEX, M.C. LAYOUT, VIJAYANAGARA, BENGALURU-560 040.

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…RESPONDENTS

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(BY SRI JAGADEESHWARA, ADVOCATE FOR R1 & R2)

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THIS MFA IS FILED U/S.43 RULE 1(c) OF THE CPC, AGAINST THE ORDER DATED 07.10.2017 PASSED IN

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2 - NC: 2024:KHC:36851 MFA No. 8641 of 2017

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MISC.NO.884/2014 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE PETITION FILED U/O.9 RULE 9 OF CPC TO SET ASIDE THE ORDER DATED 21.07.2014 PASSED IN O.S.530/14 ON THE FILE OF THIS COURT, BY RESTORING THE SAME TO ITS ORIGINAL STATUS.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the orders passed on Miscellaneous No.884/2014 dated 07.10.2017, the present appeal is filed.

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The appellant before this Court is the plaintiff in the suit. The suit is filed seeking the relief of bare injunction. In the said suit, the defendant was set exparte in the month of March, 2014. As there was no representation on behalf of the plaintiff, the Court has dismissed the suit on 21.07.2014 for default. Thereafter, an application is filed to set aside the exparte order on 24.11.2014, the same came to be dismissed by the Trial Court. While dismissing the Miscellaneous No.844/2014, the Court has observed that as per Article 122 of the Schedule of the Limitation Act, the petition for restoration of the suit has to be filed within 30 days from the date of

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3 - NC: 2024:KHC:36851 MFA No. 8641 of 2017

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dismissal. As the learned counsel for the petitioner has taken the wrong hearing date and the date of knowledge of dismissal of O.S.No.530/2014 has to be taken into consideration and from that within 30 days, the petitioner has to file petition for restoration excluding reasonable days for obtaining certified copy.

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It is observed that from Ex.P1, it is clear that the suit was dismissed for default on 21.07.2014, but the Presiding Officer while signing the order, put the date as 04.08.2014. The application was filed for certified copies on 10.11.2014 and the miscellaneous application was filed on 22.11.2014. The Court observed that the appellant has not made out a case to condone the delay and dismissed the application. Aggrieved by the same, the present appeal is filed.

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Notice is served on the respondent and there is no representation on behalf of the respondent. Yesterday also, when the matter came up before this Court, there was no representation. Even today also, there is no representation on behalf of the respondent.

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4 - NC: 2024:KHC:36851 MFA No. 8641 of 2017

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Learned counsel appearing for the appellant

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submits that three other suits were listed and he wrongly took the date in that suit. In view of the same, the delay has occurred. He submits that the delay of 60 days is not an inordinate delay. The Court strictly considering Article 122 of the Schedule to the Limitation Act, ought not to have dismissed the application. He submits that the Trial Court, more on technicalities had dismissed the petition.

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Having heard the learned counsel for the appellant, perused the material on record. The application is filed to condone the delay of 60 days in setting aside the default order. The delay as stated is 60 days and as observed by the Trial Court, for that period, the petitioner could not reasonably explain how the said delay has occurred. The delay is not an inordinate delay. While considering the applications for condonation of delay, the Court has to take into consideration the interest of both the parties. Courts basing on the facts and circumstances of each case shall consider the applications. Coming to facts of the case, as the delay is not an inordinate delay, this Court is of the view that the said delay can be condoned in the interest of justice. Therefore, the order passed

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NC: 2024:KHC:36851 MFA No. 8641 of 2017

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on Miscellaneous No.884/2014 dated 07.10.2017 is set aside

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and the delay of 60 days is condoned and the suit is restored to file.

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Accordingly, the miscellaneous first appeal is allowed.

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SD/(LALITHA KANNEGANTI)

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JUDGE

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ST List No.: 1 Sl No.: 15

Sri. Prasanna Kumar v. the Commissioner

Case brief

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Sri. Prasanna Kumar v. the Commissioner

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