Karnataka High Court
Narayanashetty vs Sri Basavaraju on 19 January, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.18990 OF 2016 (GM-CPC)
BETWEEN:
NARAYANASHETTY,
S/O LATE CHIKKAGAVIVENKA,
AGED ABOUT 66 YEARS,
R/A SATHEGALA VILLAGE,
KOLLEGAL TALUK,
CHAMARAJNAGAR DISTRICT.
PRESENTLY R/A PANDAVAPURA TOWN,
MANDYA DISTRICT,
REPRESENTED BY HIS GPA HOLDER,
SRI. M. MAHADEVU,
S/O MADASHETTY,
AGED ABOUT 49 YEARS,
SATHEGALA VILLAGE,
KOLLEGALA TALUK,
CHAMARAJANAGAR.
...PETITIONER
(BY SMT. P.C.SUNITHA, ADVOCATE)
AND:
SRI. BASAVARAJU,
S/O LATE CHIKKANEGOWDA,
AGED ABOUT 54 YEARS,
2
R/A SATHEGALA AGRAHARA VILLAGE,
KOLLEGALA TALUK,
CHAMARAJANAGAR DISTRICT - 571 313.
...RESPONDENT
(BY SRI. P. MAHADEVA SWAMY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS; QUASH THE ORDER PASSED IN
MISC.4/2013 BEFORE THE ADDL. CIVIL JUDGE AND JMFC
AT KOLLEGALA AT ANNEX-E AND ORDER PASSED IN
ORDER SHEET IN MISC.4/2013 BEFORE THE ADDL. CIVIL
JUDGE AND JMFC AT KOLLEGALA AT ANNEX-F AND ALLOW
SAID APPLICATION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner being aggrieved by the order
dated 10.02.2016 passed in Misc. Petition No.4/2013
by the Additional Civil Judge and JMFC., Kollegala, has
filed this writ petition.
2. Brief facts leading rise to filing of this writ
petition are as under:
The petitioner filed a suit in O.S.No.23/2009
seeking for the relief of declaration and injunction
against the respondent. In the said suit, respondent
appeared and filed written statement. Thereafter,
Trial Court framed the issues. When the matter was
posted for petitioner evidence, petitioner could not
appear before the Trial Court. The Trial Court
dismissed the suit for non-prosecution. Hence, the
petitioner filed the application for restoration of
original suit along with application for condonation of
delay. The said application was opposed by the
respondent. The Trial Court after holding enquiry on
Section 5 of the Limitation Act, rejected the
application of Section 5 of the Limitation Act, on the
ground that the petitioner has not made out sufficient
cause for condoning delay in filing an application. The
petitioner being aggrieved by the order passed by the
Trial Court has filed this writ petition.
3. Heard learned counsel for the petitioner
and also learned counsel for respondent.
4. Learned counsel for the petitioner submits
that the Trial Court has committed an error in
rejecting the application for condonation of delay.
She further submits that the Trial Court ought to have
considered the application under Section 5 of the
Limitation Act. She further places a reliance on the
judgment of the Hon'ble Apex Court in the case of
COLLECTOR LAND ACQUISTION V/S MST. KATIJI
& ORS., reported in AIR 1987 SC 1353. She further
submits that the Trial Court has committed an error in
passing the impugned orders. Hence, on these
grounds, she prays to allow the writ petition.
5. Per contra, learned counsel for the
respondent supports the impugned order. He further
submits that though the suit was filed in the year
2009, written statement was filed and Trial Court has
framed the issues. In spite of granting sufficient
opportunity the petitioner has failed to appear and led
evidence. He further submits that the Trial Court
after providing a sufficient opportunity was justified in
dismissing the suit. He further submits that the
petitioner has not made out a sufficient cause in filing
the Miscellaneous Petition. He further submits that
the Trial Court was justified in rejecting the
application filed under Section 5 of the Limitation Act.
6. Perused the records and considered the
submission made by the learned counsel for the
parties.
7. The petitioner filed a suit in
O.S.No.23/2009 for the relief of declaration and
injunction. In the said suit, respondent filed the
written statement and Trial Court has framed the
issues. When the case was posted for plaintiff
evidence, petitioner remained absent. It is a case of
the petitioner that the petitioner was working as a
Coolie labour due to heavy drought in the local area of
the petitioner he went to Bengaluru for searching work
for his livelihood. The petitioner could not meet his
counsel and could not give instructions to follow the
case. In the meantime, suit came to be dismissed for
non-prosecution. The petitioner has explained the
delay stating that he has sufficient cause that the
petitioner was out of village and was started residing
at Bengaluru for his livelihood. The Trial Court has
not considered the reasons assigned by the petitioner.
In view of the law laid down by the Hon'ble Apex
Court in the aforesaid judgment, wherein the Hon'ble
Apex Court held that for condonation of delay Court
should adopt liberal approach. In view of the same,
the Trial Court has committed an error in rejecting
the application on a technical grounds.
8. In view of the above discussion, I proceed
to pass the following:
ORDER
i. The writ petition is allowed.
ii. The impugned orders dated
10.02.2016 passed in Misc. Petition
No.4/2013 by the Additional Civil
Judge and JMFC, Kollegal has set
aside and the application filed under
Section 5 of the Limitation Act is
allowed. Consequently, the Misc.
Petition is allowed.
iii. The suit is restored subject to cost of
Rs.15,000/- payable to the
respondent within a period of four
weeks from the date of receipt of
copy of this order.
iv. The parties are directed to appear
before the Trial Court in the said suit
on 25.02.2022 without awaiting any
further notice from the Trial Court.
v. Further, Trial Court is directed to
disposed of the suit as expeditiously
as possible.
vi. Parties are directed to cooperate with
the Trial Court for early disposal of
the suit.
SD/-
JUDGE
GRD
