Allowed

Sri. v. Ramachandra v Sri. M .L Jayarajegowda

Karnataka HC22 Apr 2026WP/24322/2022

Case brief

AI extract

What is this about?

Petitioner's ex parte specific performance decree was challenged by respondent through an Order IX Rule 13 petition dismissed for non-prosecution; the Trial Court later restored it under Order IX Rule 4 after condoning over seven years' delay. The High Court held Order IX Rule 4 was not maintainable, the delay was unexplained, and set aside the restoration order.

What did the court decide?

Impugned order dated 21.09.2022 in Misc.P.No.7/2020 set aside; no costs.

Sri. v Ramachandra Vs Sri. M .L Jayarajegowda — Specific Performance | Karnataka HC (2026)

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NC: 2026:KHC:21785 W.P. No.24322/2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF APRIL, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.24322/2022 (GM-CPC)

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BETWEEN:

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SRI. V. RAMACHANDRA S/O LATE D. VENKATESHAIAH AGED ABOUT 72 YEARS R/AT D NO.624/1 KAVITHA NIVASA, 2ND CROSS NALA BEEDI, K R MOHALLA MYSURU.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. SIDDHARTH PADMARAJ DESAI, ADV.,)

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AND:

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…PETITIONER

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SRI. M.L. JAYARAJEGOWDA S/O LATE LAXMEGOWDA AGED ABOUT 60 YEARS R/AT RAGHAVENDRA NILAYA 3RD MAIN, 8TH CROSS SHANTHI NAGAR, HASSAN.

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…RESPONDENT

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(BY SRI. BHUVAN K.P.,ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN MISC.NO.7 OF 2020 AND ALSO IN MISC.NO.19 OF 2011, ON THE FILES OF THE HONBLE II ADDITIONAL SENIOR CIVIL JUDGE, AND CJM, MYSURU. QUASH/SET ASIDE THE ORDER DTD 21.09.2022 PASSED IN MISC.NO.7/2020 ON THE FILE OF

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NC: 2026:KHC:21785 W.P. No.24322/2022

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THE HONBLE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU ANNEXURE-A & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 16.04.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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This writ petition is filed challenging the order dated 21.09.2022 passed in Misc.P.No.7/2020 by the II

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Additional Senior Civil Judge and CJM, Mysuru (for short, 'the Trial Court').

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Sri.Siddharth P.Desai, learned counsel appearing for the petitioner makes the following submissions:

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(a) The petitioner has filed a suit for specific performance which came to be decreed ex parte on 20.12.2008.

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(b) The petitioner has filed Ex.P.No.82/2010 to execute the judgment and decree in O.S.No.220/2007.

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Procedure, 1908 (for short, 'the CPC') in

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Misc.P.No.19/2011 on 21.02.2011 with a delay of nearly 3 years. The said miscellaneous petition was dismissed for non-prosecution on 03.07.2012.

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(d) The respondent filed miscellaneous petition under Order IX Rule 4 of the CPC seeking to set aside the order dated 03.07.2012 passed in Misc.P.No.19/2011, after a period of 7½ years and the same was registered as Misc.P.No.7/2020.

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(e) The Trial Court allowed the Misc.P.No.7/2020 under the impugned order dated 21.09.2022 without assigning any reasons for condoning the enormous delay.

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The petition under Order IX Rule 4 of the CPC is not maintainable. The remedy to challenge the order passed on Order IX Rule 13 of the CPC would be under Order XLIII(1)(d) of the CPC. In support of his contentions, he placed reliance on the following decisions:

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(1) PATHAPATI SUBBA REDDY (DIED) BY LEGAL REPRESENTATIVES & OTHERS Vs. SPECIAL DEPUTY COLLECTOR (LA)¹

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(2) H.GURUSWAMY AND OTHERS Vs. KRISHNAIAH SINCE DECEASED BY LRS.²

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(3) THIRUNAGALINGAM Vs. LINGESWARAN³

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(4) MAJJI SANNEMMA ALIAS SANYASIRAO V.REDDY SRIDEVI AND OTHERS⁴

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(5) POPAY BAHIRU GOVARDHANE AND OTHERS Vs. SPECIAL LAND ACQUISITION OFFICER AND OTHERS⁵

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Per contra , Sri.Bhuvan K.P, learned counsel for the respondent supports the impugned order of the Trial Court and makes the following submissions:

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(a) The suit of the petitioner was decreed ex parte without service of summons.

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(b) Clause 8 of the agreement of sale indicates that if

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the respondent failed to perform his part of contract, the

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remedy is to refund the advance amount with damages

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1 (2024) 12 SCC 336

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2 2025 SCC Online SC 54

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3 2025 SCC Online sc 1093

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4 2021 SCC Online SC 1260

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5 (2013) 10 SCC 765

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and not to enforce the contract. However, the Trial Court

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has not considered the same.

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(c) The respondent has no knowledge about the filing of the suit. Only when the execution petition was filed by the petitioner, he came to know about the judgment and decree and hence, he filed miscellaneous petition which was dismissed for non-prosecution and not on merits. Hence, the miscellaneous petition under Order IX Rule 4 of the CPC is maintainable and only in the cases of disposal of the miscellaneous petition on merits, the appeal lies.

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(d) The Trial Court, under the impugned order has assigned detailed reasons with regard to the health conditions of the respondent and allowed the miscellaneous petition by restoring Misc.P.No.19/2011 and the petitioner can contest the said proceedings on merits.

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(e) The right of immovable property is involved in the proceedings and considering the said aspect, the Trial Court passed the impugned order by restoring

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Misc.P.No.19/2011 which does not call for any

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interference.

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I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondent and meticulously perused the material available on record.

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The petitioner has filed a suit in O.S.No.220/2007 before the II Additional Civil Judge (Senior Division), Mysuru, for the relief of judgment and decree of specific performance. The suit summons could not be served on the defendant, hence, the notice on the defendant was served by way of substituted service but defendant did not appear. The Trial Court, vide an ex parte judgment and decree dated 20.12.2008 decreed the suit as prayed for, by directing the defendant to execute

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the registered sale deed in respect of the suit schedule property within two months, failing which the plaintiff

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would be entitled to get the registered sale deed executed

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as per law.

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The records indicate that the petitioner-decree holder filed an execution petition in Ex.P.82/2010 on 15.02.2010. The respondent filed a petition in Misc.P.No.19/2011 under Order IX Rule 13 of the CPC on 21.02.2011 seeking to set aside the ex parte judgment and decree dated 20.12.2008. The order dated 03.07.2012 of the said proceedings indicates as follows:

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"Petitioner absent. Counsel absent. No representation. It appears to the Court that the petitioner is not interested to prosecute the petition. Accordingly, petition is dismissed for the default."

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The respondent filed another miscellaneous petition in Misc.No.7/2020 under Order IX Rule 4 of the CPC on 13.01.2019 seeking to set aside the order dated 03.07.2012 passed in Misc.P.No.19/2011 and to restore the said miscellaneous petition. The Trial Court, under the

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impugned order, allowed Misc.P.No.7/2020 on a cost of Rs.2,000/- by condoning the delay and by restoring Misc.P.No.19/2011.

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It is to be noticed that the application to set aside the ex parte judgment and decree dated 20.12.2008 was filed under Order IX Rule 13 of the CPC. A perusal of Order XLIII(1)(d) of the CPC makes it very clear that the specific remedy to challenge an order passed upon an application under Order IX Rule 13 of the CPC would be an

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appeal as per Order XLIII(1)(d) of the CPC. Hence, in view of the specific remedy under Order XLIII(1)(d) of the CPC to file an appeal against an order passed under Order IX Rule 13 of the CPC, the filing of an application under Order IX Rule 4 of the CPC is not maintainable and the same is required to be interfered with.

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The records further indicate that the first miscellaneous petition filed by the respondent i.e. Misc.P.No.19/2011 was with a delay of more than 3 years.

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The same came to be dismissed on 03.07.2012 and

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thereafter, the second miscellaneous petition i.e. Misc.P.No.7/2020 was filed on 13.01.2019 to re-call the order dated 03.07.2012, which is nearly 7 years after the passing of the order and 10 years from the date of judgment and decree in the suit. A perusal of the averments in the petition with regard to the delay indicates that the respondent has stated that he is suffering from high sugar level in his body due to diabetes and the doctor has advised him to take bed rest. The Trial Court, under the impugned order, proceeded to restore Misc.P.No.19/2011 merely on the ground that the dispute

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is pertaining to immovable property and to avoid further multiplicity of proceedings. Such an approach of the Trial Court in condoning the delay of 7 years in the absence of any sufficient cause, in my considered view, is erroneous and calls for interference.

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In view of the aforementioned aspect of

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condonation of delay, it would be useful to refer to the

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decision of the Hon'ble Supreme Court in the following

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cases along with their relevant paragraphs:

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(a) In the case of PATHAPATI SUBBA REDDY ,

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referred supra, it was held as under:

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"7. The law of limitation is founded on public policy. It is enshrined in the legal maxim “interest reipublicae ut sit finis litium” i.e. it is for the general welfare that a period of limitation be put to litigation. The object is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. Even public policy requires that there should be an end to the litigation otherwise it would be a dichotomy if the litigation is made immortal vis-à-vis the litigating parties i.e. human beings, who are mortals.

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8. The courts have always treated the statutes of limitation and prescription as statutes of peace and repose. They envisage that a right not exercised or the remedy not availed for a long time ceases to exist. This is one way of putting to an end to a litigation by barring the remedy rather than the right with the passage of time.

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21. In Maqbul Ahmad v. Pratap Narain Singh [Maqbul Ahmad v. Pratap Narain Singh, 1935 SCC OnLine PC 5 : AIR 1935 PC 85] , it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.

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22. In this connection, a reference may be made to Brijesh Kumar v. State of Haryana [Brijesh Kumar v. State of Haryana, (2014) 11 SCC 351 : (2014) 4 SCC (Civ) 113] wherein while observing, as above, this Court further laid down that if some person has obtained a relief approaching the court just or immediately when the cause of action had arisen, other persons cannot take the benefit of the same by approaching the court at a belated stage simply on the ground of parity, equity, sympathy and compassion.

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25. In Basawaraj v. LAO [Basawaraj v. LAO, (2013) 14 SCC 81] , this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and

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circumstances of each case. The expression “sufficient cause” as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds.

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26. It would be beneficial to quote para 12 of the aforesaid decision in Basawaraj case [Basawaraj v. LAO, (2013) 14 SCC 81] which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal approach and in implementing the statute as it stands. Para 12 reads as under: (SCC pp. 86-87)

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“12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision

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may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.”

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27. This Court in the same breath in the same very decision vide para 15 went on to observe as under: (Basawaraj case [Basawaraj v. LAO, (2013) 14 SCC 81] , SCC pp. 87-88)

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“15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever,

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amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”

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(Emphasis supplied)

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b) In the case of H.GURUSWAMY AND OTHERS ,

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referred supra, it was held as under:

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"15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

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16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of

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delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay."

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c) In the case of THIRUNAGALINGAM, referred supra,

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it was held as under:

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"31. It is a well-settled law that while considering the plea for condonation of delay, the first and foremost duty of the court is to first ascertain the bona fides of the explanation offered by the party seeking condonation rather than starting with the merits of the main matter. Only when sufficient cause or reasons given for the delay by the litigant and the opposition of the other side is equally balanced or stand on equal footing, the court may consider the merits of the main matter for the purpose of condoning the delay.

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32. Further, this Court has repeatedly emphasised in several cases that delay should not be condoned merely as an act of generosity. The pursuit of substantial justice must not come at the

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cost of causing prejudice to the opposing party. In the present case, the respondents/defendants have failed to demonstrate reasonable grounds of delay in pursuing the matter, and this crucial requirement for condoning the delay remains unmet."

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d) In the case of MAJJI SANNEMMA, referred supra, it

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was held as under:

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"7.1. In Ramlal [Ramlal v. Rewa Coalfields Ltd., 1961 SCC OnLine SC 39 : (1962) 2 SCR 762 : AIR 1962 SC 361] , it is observed and held as under : (AIR pp. 363-64, para 7)

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“7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that

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judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan [Krishna v. Chathappa n, 1889 SCC OnLine Mad 1] : (SCC OnLine Mad para 2)

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‘2. … Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.’ ”

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7.2. In P.K.Ramachandran [P.K.Ramachandran v. State of Kerala, (1997) 7 SCC 556], while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for

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condoning the delay, the court has to exercise discretion judiciously.

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7.3. In Pundlik Jalam Patil [Pundlik Jalam Patil v. Jalgaon Medium Project, (2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] , it is observed as under : (SCC p. 450)

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“… the laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.”

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7.4. In Basawaraj [Basawaraj v. LAO, (2013) 14 SCC 81] , it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and

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circumstances of each case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

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7.5. In Pundlik Jalam Patil [Pundlik Jalam Patil v. Jalgaon Medium Project, (2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] , it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The courts help those who are vigilant and “do not slumber over their rights”.

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The aforesaid enunciation of law laid down by

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the Hon'ble Supreme Court makes it very clear that the power to condone the delay given to the Courts has to be considered keeping in mind the facts and circumstances of each case. It is also clearly held that in order to advance substantial justice, though liberal approach, justiceoriented approach or cause of substantial justice may be kept in mind, but the same cannot be used to defeat the substantial law of limitation contained in the Limitation Act, 1963. It is clear from the aforesaid proposition of law that the delay in filing a petition, specially when there is negligence, inaction or lack of bona fide involved, then the statute of limitation has to be applied with full rigour. When a petition is filed after an inordinate delay, it is to be seen that the settled rights of one party are not unsettled on account of negligence and lack of due diligence of another party. In the instant case, the reasons stated by the respondent to explain the delay of seven and half years are casual and in a routine manner without any

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material on record, which is impermissible. Hence, the condonation of the delay of over seven years and allowing of the petition by the Trial Court is required to be interfered with.

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The records also indicate that during the pendency of the proceedings before the Trial Court, the Execution Court through the process of the Court has executed the registered sale deed in favour of the petitioner, pursuant to the judgment and decree in O.S.No.220/2007. Taking note of the said aspect and considering the enormous delay and the negligence of the respondent, the impugned order is required to be interfered with keeping in mind the fact that the petitioner would be put through great hardship if the miscellaneous proceedings are restored and allowed to be continued at the instance of the respondent, who is not diligent in pursuing his remedies.

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