Karnataka High Court
R Basavaraju vs J Ramaiah on 5 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:43864
MFA No. 7153 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 7153 OF 2021 (CPC)
BETWEEN:
R BASAVARAJU
S/O RAMEGOWDA
AGED ABOUT 53 YEARS
R/AT NO.3876/7, III FLOOR
RAJAJINAGAR II STAGE
B BLOCK, SUBRAMANYANAGARA
BENGALURU-560 021
...APPELLANT
(BY SRI. H T NARAYAN., ADVOCATE)
AND:
J RAMAIAH
S/O LATE JAVARAMESTRI
AGED ABOUT 76 YEARS
Digitally signed R/AT NO.3876/7, NEW III CROSS
by
DHANALAKSHMI RAJAJINAGAR II STAGE, B BLOCK
MURTHY
Location: High SUBRAMANYANAGARA
Court of BENGALURU-560 021
Karnataka
...RESPONDENT
THIS MFA IS FILED UNDER ORDER 43 RULE 1(c) OF CPC,
AGAINST THE ORDER DATED: 20.12.2019 PASSED ON I.A. NO.
1 IN MISC. 25096/2016 ON THE FILE OF THE 4TH ADDITIONAL
CITY CIVIL LAND SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU (CCH-21), DISMISSING THE I.A. NO.1 FILED
UNDER SECTION 5 OF LIMITATION ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 7153 of 2021
JUDGMENT
1. This appeal under Order XLIII Rule 1 (c) of the CPC
has been filed by the plaintiff challenging the order dated
20.12.2019 passed by the 74th Additional City Civil and
Sessions Judge, Bengaluru in Misc.No.25096/2016 on
I.A.No.1 filed by the plaintiff under Section 5 of the
Limitation Act, 1963 ('the Act' for short), whereby the
application filed for condonation of delay of 1799 days in
filing the application for setting aside the dismissal order
dated 18.07.2011 in O.S.No.17148/2006 has been
dismissed.
2. For the sake of the convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaintiff has filed a suit for specific performance in
O.S.No.17148/2006. Since the plaintiff has not prosecuted
the suit, the suit came to be dismissed by order dated
18.07.2011. Being aggrieved by the same, the plaintiff has
filed miscellaneous petition in Misc.No.25096/2016 for
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restoration of the suit and also filed an application under
Section 5 of the Act to condone the delay of 1799 days in
filing the said miscellaneous petition filed for setting aside
the dismissal order dated 18.07.2011 in
O.S.No.17148/2006.
4. The learned counsel for the plaintiff has contended
that the plaintiff has filed the suit for specific performance.
The said suit came to be dismissed by the trial Court.
Therefore, the plaintiff has filed the miscellaneous petition
for restoration of the suit and also filed an application for
condoning the delay in filing the said miscellaneous
petition. She contended that since the defendant had
assured the plaintiff for settlement of the matter, he did
not file the miscellaneous petition for restoration of the
suit. Thereafter, since the defendant failed to settle the
matter, the plaintiff left with no other option, filed the
miscellaneous petition and therefore, there was delay in
filing the miscellaneous petition. Hence, she sought for
allowing the appeal.
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5. Heard the learned counsel for the appellant. Perused
the impugned order.
6. The plaintiff filed the suit for specific performance.
Since the plaintiff has not prosecuted the suit, the suit
came to be dismissed by order dated 18.07.2011.
Thereafter, the plaintiff has filed the miscellaneous petition
in Misc.No.25096/2016 for restoration of the suit and also
filed an application under Section 5 of the Act to condone
the delay of 1799 days in filing the miscellaneous petition.
The only reason assigned by the plaintiff for condoning the
inordinate delay is that the defendant had assured him for
settlement of the matter and believing his words, he did
not take any steps for restoration of the suit. Except that,
there is no other reason assigned by the plaintiff. Since,
no proper explanation has been assigned by the plaintiff
for condoning the inordinate delay of 1799 days, the trial
Court is justified in rejecting the application filed by the
plaintiff. There is no error in the impugned order passed
by the trial Court and therefore, I am declined to interfere
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with the order passed by the trial Court. Hence, I pass the
following order:
ORDER
a) The appeal is dismissed.
Sd/-
JUDGE
HA
