Karnataka High Court
Sri. A Nagaraja vs M/S Solomon David Holdings Private ... on 1 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:4625
MFA No. 6471 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6471 OF 2023 (CPC)
BETWEEN:
1. SRI. A NAGARAJA
AGED ABOUT 67 YEARS,
S/O LATE ANNAYAPPA,
RESIDING AT OLD NO.13,
NEW NO.179, NEAR SRIRAMA TEMPLE,
CHALLAGATTA, YEMLUR POST,
BENGALURU-560037
...APPELLANT
(BY SRI. CHANDRA MOHAN K., ADVOCATE)
AND:
1. M/S. SOLOMON DAVID HOLDINGS PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE
Digitally signed AT 1ST FLOOR, EMBASSY PINT,
by SHARANYA T NO.150, INFANTRY ROAD,
Location: HIGH BENGALRU-560008.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI. MANEESHA KONGOVI, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 14.10.2022 PASSED ON
I.A.NO.1 IN MISC.NO.1054/2022 ON THE FILE OF THE IX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
SCCH-5, DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC:4625
MFA No. 6471 of 2023
JUDGMENT
Heard the learned counsel for the appellant and also
the learned counsel for the respondent on I.A.No.1/2023
for condoning the delay of 246 days in filing the present
appeal.
2. There is a delay of 246 days in filing the
present appeal. Having perused the affidavit sworn to in
support of application for condonation of 246 days delay in
filing the appeal, except stating that after the retirement
of his advocate, he has engaged the present advocate and
he verified the case papers and found already an order has
been passed and advised him to challenge the said order
nothing is stated regarding delay. It is also stated that
after getting the opinion, the certified copy was applied on
03.02.2023. The copy was ready on the very same day
and delivered the same on next day i.e., 04.02.2023. After
getting the opinion, the appeal is prepared and filed. From
October 2022 till he engaged new Advocate and he had no
legal assistance from anybody. Under such circumstances,
NC: 2024:KHC:4625
he could not pursue the remedy and hence delay may be
condoned.
3. The counsel appearing for the appellant also
re-iterates the grounds stated in the affidavit. The counsel
appearing for the respondent filed statement of objections
to I.A. No.1/2023 and categorically contended in the
statement of objections that the appellant has not
approached the Court with clean hands and he is guilty of
supressio veri and suggestio falsi and hence the appellant
is not entitled for any relief as claimed. It is also
contended that order was passed on 14.10.2022 and the
appellant ought to have filed the appeal on or before
14.01.2023. The counsel also would submits that in the
Trial Court the counsel argued the matter and after
hearing both the parties only an order has been passed.
The counsel also submits that the appeal was filed on
15.09.2023 and there is no any explanation with regard to
non filing of appeal immediately and even after obtaining
certified copies, since in the affidavit itself he has stated
NC: 2024:KHC:4625
that the certified copy was obtained on the very next day
itself i.e., on 04.02.2023. No explanation has been given
from the month of February to September for non filing of
the appeal even after having the knowledge and after
obtaining certified copy. The counsel also would submits
after having both, the impugned order has been passed,
caveat petition was also filed, the same was also renewed
in the month of January and the second caveat was also
expired in the month of March and no explanation for the
same. In the absence of explanation with regard to delay
in filing the appeal, this Court cannot condone the delay.
4. Having heard the appellant's counsel and also the
counsel appearing for the respondent, having perused the
application filed under Section 5 of Limitation Act, the very
affidavit filed by the appellant is very bald. No explanation
from the date of passing of order till applying the certified
copy. Even after obtaining the certified copy in the month
of February also, not filed the appeal immediately and only
stated that after retirement of Advocate, he has engaged
NC: 2024:KHC:4625
the new Advocate, the same is not stated in the affidavit.
When the order has been passed by giving an opportunity
to both the sides, i.e., on 14.10.2022, no explanation for
non filing of present appeal for a period of 11 months i.e.,
from 14.10.2022 to 15.09.2023. The appellant has to
explain each day delay to condone the delay and also the
affidavit is very bald. The counsel for respondent also
brought to notice of this Court that the appeal is filed
belatedly and no reasons has been assigned in the
affidavit also. The appellant even having the knowledge of
impugned order in the month of February also, that too he
has already obtained the certified copy within one day, but
no steps are taken to file the appeal and no explanation
has been given with regard to the same from February to
September. When such being the case, I do not find any
ground to condone the delay of 246 days in filing the
present appeal. Hence, the application I.A.No.1/2023 is
rejected and consequently, the Miscellaneous First Appeal
is also dismissed.
NC: 2024:KHC:4625
5. In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same stands disposed
of.
Sd/-
JUDGE
RHS
