Karnataka High Court

Sri S Ramesha vs Gowrishankara on 10 March, 2022

Bench: Dr.H.B.Prabhakara Sastry

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF MARCH 2022

                            BEFORE

   THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       WRIT PETITION No.2620 OF 2017 (GM-CPC)

BETWEEN:

Sri S. Ramesha,
S/o Late Patel Srikantaiah,
Aged about 56 years,
Resident of Chandagalu Village,
Srirangapatna Taluk,
Mandya District
Pincode-571 438.                          .. Petitioner

 ( By Sri P.L.Rajesh, Advocate
   For Sri N.B.Nijalingappa, Advocate )

AND:

1. Gowrishankara,
   S/o Late Eregowada,
   Aged about 64 years,
   Resident of Chandagalu Village,
   Srirangapatna Taluk,
   Mandya District,
   Pincode-571 438.

2. The Secretary,
   Gramapanchayath,
   Naguvanahalli Village,
   Srirangapatna Taluk,
   Mandya District,
   Pincode-571 438.

3. Executive Officer,
   Taluk Panchayath,
                                                 WP.No.2620/2017
                                 2


   Srirangapatna Taluk,
   Srirangapatna,
   Mandya District,
   Pincode-571 438.                            .. Respondents

 (By Sri D.R.Rajashekharappa, Advocate for R-1,
  Sri B.J.Somayaji, Advocate for R-3,
  R-2 - Served)

      This Writ Petition is filed under Article 227 of the
Constitution of India praying to      issue a writ of certiorari
quashing the impugned order dated 09.08.2016, passed by the
learned Principal Senior Civil Judge and JMFC, Srirangapatna, in
Review Petition No.1/2015 marked as Annexure-G and issue any
other writ, order, direction as this Hon'ble Court deems fit to
grant in the circumstances of the case.

      This Writ Petition coming on for Preliminary Hearing in `B'
Group through Physical Hearing/Video Conferencing Hearing, this
day, the Court made the following:

                              ORDER

The present petitioner was the plaintiff in

O.S.No.173/2006 filed in the Court of Prl.Civil Judge

(Jr.Dn.,) and JMFC, at Srirangapatna, (hereinafter for

brevity referred to as `trial Court'), against the present

respondents for the relief of declaration of title over the suit

schedule property and for permanent injunction. The said

suit came to be dismissed by the judgment of the trial Court

dated 05.01.2011. Against the said judgment and decree,

the original plaintiff preferred an appeal in R.A.No.39/2011 WP.No.2620/2017

before Prl.Senior Civil Judge & JMFC, Srirangapatna,

(hereinafter for brevity referred to as `first Appellate

Court'), which also came to be dismissed on its merits by

the judgment dated 31.05.2014. Thereafter, the petitioner

filed a Review Petition No.1/2015 in the Court of Prl.Senior

Civil Judge and JMFC, Srirangapatna, however, with a delay

of 237 days. Seeking condonation of the delay, he has filed

IA.No.I under Section 5 of the Limitation Act. The first

Appellate Court by its order dated 09.08.2016, dismissed

the said application, as well the Review Petition.

Challenging the said order, the original plaintiff, who was

the Review Petitioner, has filed the present petition.

2. Learned counsel for the petitioner in his brief

argument submitted that, though he had explained the

delay convincingly, the first Appellate Court was at error in

dismissing his application for condonation of delay. He also

submitted that the judgment of this Court in the case of

A.C.Francis (since deceased) by his LRs. -vs-

B.K.Surendrakumar and another, reported in 2014 (3)

KCCR 2640, was also not considered by the said Court.

WP.No.2620/2017

3. Per contra, learned counsel for respondent No.1

submits that delay is enormous and review petitioner has

not shown sufficient cause for condonation of delay. He

further submits that the first Appellate Court has considered

the judgment relied upon by him, as well the judgment

cited by the other respondents therein and has passed a

considered order which does not warrant any interference

by this Court. He also submits that the first Appellate Court

has exercised its discretionary power based upon the

materials placed before it and in a rational manner.

4. The petitioner, as applicant in IA.No.I filed under

Section 5 of the Limitation Act, has only stated that due to

his advanced age, coupled with his ill-health and poverty,

he could meet his counsel within time. He has stated that

he was taking traditional medical treatment for his

ill-health, as such, after his recovery, he approached his

counsel and filed the review petition. No doubt, he also

entered the witness box and got himself examined as PW-1,

wherein also, he reiterated the same contention.

WP.No.2620/2017

Admittedly, he had not produced any medical documents in

his support to show that he was suffering from any

ill-health.

5. Similarly, the respondent No.1 who filed his

statement of objections to the said interlocutory application

denying all the contentions which were taken by the

applicant therein, also entered the witness box and got

himself examined as RW-1, wherein, he stated on oath that

the contention of the applicant that he was suffering from

ill-health is totally false and at the relevant point of time,

the petitioner/applicant was not at all suffering from

ill-health. As such, the contention taken up by the applicant

seeking condonation of delay is a false contention. He also

contended that the delay being an inordinate delay, the

same shall not be condoned.

6. The above aspects clearly go to show that,

admittedly the petitioner has not produced any piece of

document to show that he was suffering from ill-health for WP.No.2620/2017

such a long time of 237 days. He has not even stated as to

what was the alleged ill-health he is said to have been

suffering with and also has not stated as to how it was

diagnosed and treated. Thus, his contention both in the

application, as well in his evidence as PW-1 was his mere

statement, which with equal force, are strongly denied and

disputed by the contesting respondent No.1, who also in his

statement of objections, as well in his evidence denied that

the petitioner was at the relevant point of time suffering

with any ill-health and was taking the treatment.

7. It is not the case of the petitioner that he was not

aware of passing of the judgment in R.A.No.39/2011 on

31.05.2014, but, it is his case that he could not meet his

advocate due to his alleged ill-health. In such a situation,

when the alleged delay being a long delay of 237 days, had

really the petitioner consulted the doctor and taken

any treatment for his alleged ill-health, he could have

necessarily maintained some medical records in that regard

and he could have placed those records before the Court WP.No.2620/2017

along with application to substantiate his contention, which

he has failed to do.

8. The contention of the learned counsel for the

petitioner is that the case law cited by him in A.C.Francis's

case (supra), was not referred by the first Appellate Court.

However, the impugned order would go to show that in

Paragraph No.14 of its order, the first Appellate Court has

referred the said case law. Even in A.C.Francis's case

(supra), a Co-ordinate Bench of this Court has declined to

condone the delay of 832 days by observing that the

pleading of the petitioner about his alleged ignorance, old

age and lack of knowledge etc., were not convincing. It

also noticed that the further contention of the petitioner

therein that he had misplaced the medical certificate was

also not convincing. Thus, in the said case, the petitioner at

least had taken a contention that he had medical certificate

and lost it, whereas, in the case on hand, it is the case of

the petitioner that he has no document at all though he

claims that he had taken treatment for not less than a WP.No.2620/2017

period of 237 days. Thus, the said A.C.Francis's case

(supra), would be of no avail to the petitioner.

On the other hand, our Hon'ble Apex Court in the case

of Basawaraj and another -vs- The Special Land

Acquisition Officer, reported in 2013(4) KCCR 3430 (SC),

was pleased to observe as below:

" The statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or latches."

It was further observed by the Hon'ble Supreme Court

in the same case that, WP.No.2620/2017

" "Sufficient cause" means an adequate and enough reason which prevented him to approach the Court within limitation. In case of a party is found to be negligent, or for want of bonafide 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, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature."

9. Thus, the filing of an application under Section 5 of

the Limitation Act, seeking condonation of delay is not a

mere formality, the applicant has to show that he had

sufficient cause which prevented him from approaching the

Court within the prescribed period of limitation. In the

instant case, the petitioner except his self-serving WP.No.2620/2017

statement, though could have produced sufficient materials,

including documentary evidence in his support, has failed to

produce any of them. On the contrary, the respondent

No.1, apart from lodging his statement of objections,

entered the witness box and even has categorically denied

that the alleged cause shown by the petitioner were