Sulochana vs The State And Anr
2022 Latest Caselaw 1211 Kant

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             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

         DATED THIS THE 27TH DAY OF JANUARY, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE E.S.INDIRESH

       WRIT PETITION No.200270 OF 2022 (GM-CPC)

BETWEEN:

Smt. Sulachon
W/o Revansiddaiayya Gorti
Age about 59 years
Occ: Household and Agriculture
Residing at Ankalagi
Kalaburagi District 585 316
                                                  ... Petitioner
(by Sri Santosh Kumar B., Biradar, Advocate)

AND:

  1. The State
     Through Deputy Commissioner
     Kalaburagi
     Kalaburagi District 585 101

  2.The Assistant Director of Land Records
     City Survey
     Room No.24, III Floor
     Mini Vidhana Soudha, Station Road
     Kalaburagi 585 101
                                               ... Respondents

(by Sri Shivakumar Tengli, AGA)
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       This Writ Petition is filed under Article 227 of the
Constitution of India praying to issue a certiorari quashing the
order dated 04.01.2022 vide Annexure-A in RA No.51/2021 on
the file of I Additional District and Sessions Judge, Kalaburagi
and IA.I filed under Section 5 of the Limitation Act be dismissed;
and etc.

      This petition coming on for preliminary hearing, this day,
the court made the following:-

                               ORDER

The petitioner has challenged the order dated 04 th

January, 2022 in Regular Appeal No.51 of 2021 on the file of I

Additional District and Sessions Judge at Kalaburagi, allowing the

Interlocutory Application No.I filed by the respondent-State.

2. For the sake of convenience, the parties in this writ

petition are referred to with their status and rank before the trial

Court.

3. The plaintiff before the II Additional Senior Civil

Judge at Kalaburagi in OS No.149 of 2009 filed suit against the

respondent-State seeking the relief of declaration of owner ship

and perpetual injunction. The Suit is for declaration of

ownership and perpetual injunction. The said suit came to be

decreed by the trial Court on 15th April, 2015, declaring that the

plaintiff is the owner in possession of the suit property described

in paragraph 2 of the plaint and further restrained the

defendants from interfering with the peaceful possession and

enjoyment of the suit schedule property. Being aggrieved by the

judgment and decree passed by the trial Court, respondent State

has filed RA No.51 of 2021 before the First Appellate Court. The

respondent has also filed application in IA.I under Section 5 of

the Limitation Act to condone the delay of 537 days in preferring

the appeal. The First Appellate Court, after considering the

material on record, by its order dated 04th January, 2022,

allowed the said application with cost of Rs.10,000/-. Being

aggrieved by the said order, petitioners preferred this writ

petition.

4. Heard Shri Santhoshkumar B. Biradar, learned

counsel for the petitioner and learned Additional Government

Advocate for the respondent.

5. Learned counsel for the petitioner argued that the

First Appellate Court, without assigning any reason allowed the

application IA.I which requires to be interfered with in this writ

petition. He further contended that the reasons assigned by the

respondent in the affidavit accompanying IA.I do not constitute

"sufficinet cause" under Section 5 of the Limitation Act and being

a role model to the litigants, the Government has not proved its

diligence while approaching the First Appellate Court and as

such, he argued that the impugned order is liable to be quashed.

6. Per Contra, Sri Shivakumar Tengli, AGA argued that

the suit is for declaration and property rights are involved inter

alia due to COVID 19 pandemic, the respondent-State has not

preferred appeal in time and as such, justified the impugned

order passed by the First Appellate Court.

7. In the light of the submission made by the learned

counsel appearing for the parties, I have carefully considered the

reasons assigned by the First Appellate Court at paragraphs 9

and 10 of the impugned judgment. Undoubtedly, the

Government had taken steps to file the appeal in time, however,

the concerned officers have to take permission from their higher

authorities and that apart, the suit is filed for declaration of the

property and such being the case, that too, agitated by the State

Government, the Courts shall recourse to liberal approach. In

the case on hand, it is not in dispute that there is delay of 537

days in preferring the appeal. Perusal of the affidavit filed in

support of IA.I before the First Appellate Court support the

reasons in support of the application and that apart, in the

mitigating circumstances of COVID 19 pandemic, though

diligence has been shown by the respondent-State in pursuing

the matter, however there is a delay of 537 days and same has

been compensated by imposing cost of Rs.10,000/-, to meet the

ends of justice. In that view of the matter, I am of view that the

First Appellate Court, applying its mind with cogent reasons,

allowed the application IA.I by exercising discretionary powers

and as such, I do not find any merit in the writ petition. Petition

is accordingly dismissed.

SD/-

JUDGE

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