Sri Vasuki vs Sri Shashidar
2022 Latest Caselaw 5288 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 23RD DAY OF MARCH, 2022

                          BEFORE

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

      WRIT PETITION NO.23192 OF 2021 (GM-CPC)

BETWEEN

SRI VASUKI
S/O H K SUBRAMANI
AGED ABOUT 51 YEARS
R/AT NO.1357, 4TH CROSS
KRISHNAMURTHY PURAM
MYSURU-570 004.
                                            ...PETITIONER
(BY SRI SRINIVASA D C, ADVOCATE)

AND

SRI SHASHIDAR
S/O LATE MAHADEV RAO
AGED ABOUT 53 YEARS
R/AT NO.101/2 WEAVERS COLONY
2ND MAIN, 3RD CROSS
VISHWESHWARA NAGAR
MYSURU-570 008.
                                           ...RESPONDENT

(NOTICE TO RESPONDENT SERVED, UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ON
IA.NO.1 PASSED BY THE HON'BLE III ADDITIONAL CIVIL JUDGE
AND JMFC AT MYSURU IN MISC NO.18 OF 2020 DATED 20TH
                                  2




SEPTEMBER, 2021 VIDE ANNEXURE-J AS ILLEGAL VOID AND
UNCONSTITUTIONAL AND FURTHER DISMISS THE IA.NO.1.

     THIS PETITION COMING ON FOR preliminary hearing in 'b'
group, THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

In this petition, petitioner has challenged the order dated

20th September, 2021 passed in Miscellaneous No.18 of 2020 on

the file of the III Additional Civil Judge and JMFC, Mysuru

allowing IA.I filed by the plaintiff/respondent herein.

2. The relevant facts for adjudication of this Writ Petition

are that the respondent herein has filed Miscellaneous No.18 of

2020 on the file of the trial Court seeking restoration of ex-parte

decree in Original Suit No.315 of 2015. In the said petition,

there is a delay of four years nine months and twelve days and

as such, the respondent has filed application under Section 5 of

the Limitation Act seeking condonation of delay in filing

Miscellaneous Petition. The said application was resisted by the

petitioner herein. The trial Court, after considering the material

on record, by its order dated 20th September, 2021 allowed IA.1

filed in Miscellaneous No.18 of 2020 and as such, condoned the

delay of four years nine months and twelve days. Feeling

aggrieved by the same, petitioner herein has preferred this writ

petition.

3. Sri Srinivasa D.C., learned counsel appearing for the

petitioner contended that the finding recorded by the trial Court

condoning the inordinate delay of four years nine months and

twelve days is without any basis. He further invited the

attention of the Court to the relevant deposition of PW1 and

submitted that the deposition of PW1 with regard to illness due

to sugar and kidney problem is not supported by cogent

evidence and therefore, he contended that the trial Court ought

to have dismissed the application filed by the respondent herein

in Miscellaneous petition.

4. Respondent served remained absent.

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

counsel appearing for the petitioner, I have carefully considered

the writ papers. The petitioner herein has filed Original Suit

No.315 of 2015 on the file of the trial Court seeking relief of

recovery of Rs.3,04,545/- with interest. The respondent herein

has not contested the suit by filing written statement, despite

appeared through the counsel. The trial Court, by its judgment

and decree dated 26th September, 2015, decreed the suit.

Thereafter, the petitioner herein has filed Execution Petition in

Execution Case No.52 of 2016 before the trial Court and at that

stage, the respondent herein has filed Miscellaneous petition

No.18 of 2020 after lapse of four years nine months and twelve

days. I have carefully considered the finding recorded by the

trial Court. The trial Court has recorded the evidence of the

parties and the respondent herein has marked Exhibits P1 to

P33. The trial Court, considering the material on record, by

impugned order dated 20th September, 2021 (Annexure-J)

allowed IA.1 with cost of Rs.3,000/-. Though the trial Court

while allowing IA.1 filed under Section 5 of the Limitation Act has

given a finding that the limitation application should be

considered liberally and shall not be considered strictly except by

imposing minimum cost, however, ought to have considered the

fact that the suit is filed for recovery of money and the delay of

four years nine months and twelve days in filing the

Miscellaneous petition. I have carefully considered the affidavit

filed by the respondent along with IA.1. Therefore, without

disturbing the finding recorded by the trial Court in allowing the

application IA.I, I am of the view that the cost imposed by the

trial Court is meager and not in consonance with the length of

delay of four years nine months and twelve days in filing the

Miscellaneous Petition. In that view of the matter, I am of the

view that this petition be allowed in part by setting aside that

portion of the order of imposition of cost by the trial Court at

Rs.3,000/- and by imposing the cost of Rs.25,000/- on the

respondent herein for delay of four years nine months and

twelve days in filing the Miscellaneous Petition No.18 of 2020.

Accordingly, petition is allowed in part enhancing the cost to

Rs.25,000/- in lieu of Rs.3,000/- awarded by the trial Court.

However, the finding recorded by the trial Court allowing IA.1 is

left undisturbed. Accordingly, petition is allowed in part.

Sd/-

JUDGE

lnn