Karnataka High Court
Sumathi vs Smt Indira on 7 February, 2022
Bench: Suraj Govindaraj
W.P. NO.18791 OF 2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.18791 OF 2017 (GM-CPC)
BETWEEN:
1. SUMATHI
D/O LATE AKKAMMA GANIGA
AGED ABOUT 55 YEARS
2. ROHINI
D/O LATE AKKAMMA GANIGA
AGED ABOUT 50 YEARS
3. RAJEEVI
D/O LATE AKKAMMA GANIGA
AGED ABOUT 48 YEARS
ALL ARE RESIDING AT LAKSHMI HOUSE
BADANIDIYOOR VILLAGE AND POST
UDUPI TALUK AND DISTRICT-576115
...PETITIONERS
(BY SRI. PRASANNA.V.R, ADVOCATE)
AND:
SMT. INDIRA
W/O LATE VASU GANIGA
AGED ABOUT 76 YEARS
RESIDING AT SAGARA
SHIVAMOGGA DISTRICT-577401
... RESPONDENT
(BY SRI. BIMBADHAR M. GOUDAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO WRIT OF CERTIORARI,
W.P. NO.18791 OF 2017
2
QUASHING THE ORDER DATED 15.07.2016 ON I.A. NO.6 IN
R.A.NO.44/2012 PASSED BY THE LEARNED ADDL. SENIOR CIVIL
JUDGE, UDUPI AND CONSEQUENTIAL ORDER OF DISMISSAL OF
THE SAID APPEAL, TRUE COPY OF WHICH IS PRODUCED AT
ANNEXURE-A, CONFIRMING THE JUDGMENT AND DECREE DATED
4.6.2012 IN O.S.65/2008 PASSED BY THE LEARNED 2ND ADDL.
CIVIL JUDGE AND JMFC, UDUPI AT ANNEXURE-B AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
i. Writ of Certiorari, quashing the Order dated
15.07.2016 on I.A.No.6 in R.A. No.44/2012
passed by the learned Additional Senior Civil
Judge, Udupi and consequential order of dismissal
of the said Appeal, true copy of the which is
produced at Annexure-A, confirming the
Judgment and Decree dated 04.06.2012 in
O.S.No.65/2008 passed by the learned 2nd Addl.
Civil Judge and JMFC, Udupi, true copy of Which
is produced at Annexure-B.
ii. Any other Writ or direction as this Hon'ble Court
deems fit, to meet the ends of Justice.
2. IA No.6 was filed in R.A. No.44/2012 to bring on record
the legal representatives of deceased appellant which
came to be opposed, in furtherance of which the
impugned order of dismissal of application was passed.
3. The contention of Sri.Prasanna.V.R., learned counsel for
the petitioners is that the deponent to the affidavit
supporting IA No.6, as also the applicants in the said
W.P. NO.18791 OF 2017
application were not knowledgeable about the pendency
of the proceedings and as such, they could not be
brought on record as legal representatives of deceased
appellant within the prescribed time resulting in a delay
of 1415 days. He submits that this delay could be
condoned conditionally by imposing cost or otherwise.
The allowing of the application would not cause any
harm or prejudice to the respondents and as such, he
submits that the order of the trial Court is required to
be set-aside and the application in IA No.6 be allowed.
4. Sri. Bimbadhar M. Goudar., learned counsel for the
respondent, however, opposes the said application on
the ground that the deponent to the affidavit in support
of the IA-6 was very much aware of the proceedings in
as much as she was the sole witness in the suit in
O.S.No.65/2008 out of which RA No.44/2012 arose. In
fact, her mother had not even entered the witness box,
the entire proceedings have been conducted by the
deponent to the affidavit in support of IA-6, the
application is completely misconceived. The first
W.P. NO.18791 OF 2017
Appellate Court has rightly rejected the application for
condonation of delay.
5. Heard Sri.Prasanna.V.R, learned counsel for the
petitioners and Sri.Bimbadhar M.Goudar, learned
counsel for the respondent. Perused records.
6. The only ground which has been urged by
Sri.Prasanna.V.R., learned counsel for the petitioner is
that the petitioners were not aware of the pendency of
the above appeal and as such, could not implead
themselves as legal representatives of deceased
appellant.
7. A perusal of the affidavit filed in support of IA-6
indicates that the said affidavit has been sworn to by
one Rajeevi, who was examined as DW-1 in O.S.
No.65/2008 on behalf of the defendant in the said suit
which came to be decreed and R.A. No.44/2012 was
filed challenging the decree. The only reason which is
averred in the affidavit filed in support of IA-6 is found
in paragraph No.3 of the said affidavit which is
reproduced hereunder for easy reference:
W.P. NO.18791 OF 2017
"3. I say that I did not have knowledge about
impleading the legal heirs of the deceased
appellant till my Advocate told me. In view of
this fact, I could not implead the supplemental
appellants mentioned in the accompanying
application. The delay in filing this petition is
neither intentional nor deliberate. But the same
is beyond my control and lack of knowledge. I
have filed separate application to condone the
delay and to set aside the abatement."
8. It is relying upon the same that Sri.Prasanna submitted
that the deponent did not have the knowledge of the
proceedings.
9. A perusal of the extracted paragraph No.3 would
indicate that there is no such submission which has
been made. The only submission is that the deponent
did not have the knowledge of about impleading the
legal heirs of the deceased till the advocate informed
her and delay being 1415 days in filing the application,
the affidavit does not state in as many words as to
what steps the deponent took after expiry of her
mother, what advise she received and what steps she
took since the deponent herself was examined as DW-1
in O.S. No.65/2008.
W.P. NO.18791 OF 2017
10. In view of the above, I am of the considered opinion
that there being no grounds made out to condone the
delay of 1415 days in filing the application to bring the
legal representatives of deceased appellant in R.A.
No.44/2012 on record.
11. In the result, I pass the following:
ORDER
The writ petition is dismissed.
Sd/-
JUDGE
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