Karnataka High Court
Sri P K Narayanan vs Mr Syed Jaleel Ahmed on 3 July, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2024:KHC:25510
MFA No. 7942 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 7942 OF 2019 (CPC)
BETWEEN:
SRI. P. K. NARAYANAN,
AGED ABOUT 67 YEARS,
S/O CHATHU,
#38, SAGE BAKERY AND SWEETS,
I MAIN ROAD,
MANORAYANAPALYA,
CHOLANAYAKANAHALLI,
BANGALORE - 32.
...APPELLANT
(BY SRI MANJUNATHA H R., ADVOCATE)
AND:
1. MR. SYED JALEEL AHMED,
Digitally signed by AGED ABOUT 61 YEARS,
GEETHAKUMARI
PARLATTAYA S S/O LATE ISA HAKEEN,
Location: High NO.5/24, 3RD CROSS,
Court of Karnataka
PEMMEGOWDA ROAD,
J.C.NAGAR,
BANGALORE - 560 006.
2. SRI. PAVITHRAN,
AGED ABOUT 61 YEARS,
S/O SRI. GOPALAN,
PROP: GUINNESS TAILAORS,
NO.38, KHB MAIN ROAD,
MANORAYANAPALYA,
-2-
NC: 2024:KHC:25510
MFA No. 7942 of 2019
R.T.NAGAR,
BANGALORE - 560 032.
...RESPONDENTS
(BY SRI K.S.NAGARAJA RAO, ADVOCATE FOR R1;
NOTICE TO R2 DISPENSED WITH VIDE ORDER
DATED 03.07.2024)
THIS MFA IS FILED U/O 43 RULE 1(d) OF CPC AGAINST
THE ORDER DATED 03.04.2018 PASSED IN MISC.NO.647/2012
ON THE FILE OF THE X ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (SCCH-26), DISMISSING THE
MISCELLANEOUS PETITION FILED UNDER ORDER IX RULE 13
OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In view of urgency expressed and since I.A.no.1/2019 was pending, counsels were heard on said application. There is delay of 445 days in filing appeal. I.A.no.1/2019 is filed for its condonation.
2. In affidavit filed in support of application, it is stated thus para-8:
"I further state on oath that, I am aged about 66 years and I am suffering from Parkinson decease and such other ailments and for which, I am taking treatment at Kerala and very frequently, I have to undergo medication and -3- NC: 2024:KHC:25510 MFA No. 7942 of 2019 treatment at Kerala. I have entrusted Mis Petn.647/2012 to may advocate at Bangalore and due to said treatment I could not come to Bangalore on all hearing dates. I have completed my evidence and used to stay at Kerala for my treatment. During July, 2018, I was informed by my advocate about order being passed in Mis Petn.647/2012 and due to my treatment, I could not contact my advocate at Bangalore till December, 2018 and on being asked about next process to be done. My counsel earlier engaged advised me that, I can contest the case in execution proceedings in Ex.Petn.1047/2012. Owing to my difficulty that, I have been suffering from Parkinson decease, I instructed my advocate to contest the matter in execution proceedings. In the man time, due to some mis-understanding arose between my earlier counsel and myself, I had no other option but to take no objection certificate from my earlier counsel and after getting recovered from the said ailments and after mobilizing required money to agitate matter further, I could be able to engage new advocate at Bangalore during 2nd week of July, 2019. The present advocate has entered appearance in Execution proceedings by filing No objection vakalath and advised me that orders passed in Mis.Petn 647/2012 has to be challenged before Hon'ble High Court of Karnataka and asked me to obtain necessary documents so as to enable him to prepare appeal memorandum. Immediately thereafter, during 2nd week of August, 2019, I had applied for necessary documents in Mis Petn 647/2012 as well as O.S.no.5515/2010 and produced same to my advocate. During September, 2019, I had to go to Kerala for my routine treatment and I could be able -4- NC: 2024:KHC:25510 MFA No. 7942 of 2019 to come back to Bangalore during 3rd week of September, 2019. Immediately thereafter, accompanying appeal has been prepared and got same filed this day. Thus in filing above appeal, there is a day, which is not intentional but for bonafide reasons and for want of proper legal advise."
3. Learned counsel for appellant sought to contend that due to illness and inappropriate legal advice, appeal could not be filed in time. Referring to Ex.P4, summons, it was submitted, summons in suit was not properly served, and was incorrectly taken as 'refused' and exparte decree was passed. Hence, delay may be condoned.
4. On other hand, learned counsel for respondents sought to oppose application. It was submitted, counter affidavit was filed denying claim of appellant that he was suffering from any ailment and was away in Kerala for taking treatment. Since there was no reasonable explanation, delay cannot be condoned.
5. Heard.
6. Insofar as condonation of delay, it is not number of days that would be relevant. Whether cause was beyond control of appellant that have to be taken into consideration. -5-
NC: 2024:KHC:25510 MFA No. 7942 of 2019
7. In affidavit in support of application, it is stated that impugned order was passed on 03.04.2018 and same was informed by his counsel during July-2018. It is stated that he could not contact counsel till Deember-2018. Later, he was advised that he could contest matter in execution and was prosecuting execution petition until 2nd week of July, 2019, when he obtained no objection from earlier counsel and engaged another counsel. Said counsel advised him that order in Miscellaneous Petition has to be challenged. Thereafter, appeal is filed.
8. From above, it is seen that appellant was aware of impugned order. In fact Miscellaneous Petition was by appellant himself. It is seen that appellant was prosecuting Execution Petition even after knowing about dismissal of Miscellaneous Petition. No action is stated to have been taken against counsel, if there was incorrect/inappropriate advise. And though appellant claims to have been suffering from Parkinson's decease, absolutely no records are produced. Even attempts to substantiate submission by reference to summons in suit would not be of any help as same would have no bearing -6- NC: 2024:KHC:25510 MFA No. 7942 of 2019 on delay. Reference to same would be totally misconceived insofar as I.A.no.1/2019 is concerned.
Since delay of 445 days is not properly explained, I.A.no.1/2019 is dismissed. Consequently, appeal and pending applications are dismissed.
Sd/-
JUDGE Mkm: List No.: 1 Sl No.: 2