Karnataka High Court
Smt.Kamal W/O. Gulab Singh Rajaput vs The Special Land Acquisition Officer on 14 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3665
CRP No. 100005 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
R
CIVIL REVISION PETITION NO.100005 OF 2020 (LAC)
BETWEEN:
SMT.KAMAL
W/O. GULAB SINGH RAJAPUT,
AGED ABOUT 73 YEARS,
OCC: RETIRED GOVERNMENT SERVANT,
R/A: AZAD GALLI, BELAGAVI
DIST : BELAGAVI-581108.
...PETITIONER
(BY SRI. G.N. NARASAMMANAVAR, ADVOCATE)
AND:
THE SPECIAL LAND ACQUISITION OFFICER,
SAUNDATTI, NOW M.P.III
DHARWAD-580003.
SAMREEN
AYUB
DESHNUR ...RESPONDENT
Digitally signed by
SAMREEN AYUB
DESHNUR
Date: 2024.02.22
16:45:18 +0530
THIS C.R.P. IS FILED UNDER SEC.115 OF CPC, PRAYING TO
SET ASIDE THE ORDER PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
SAUNDATI IN LAC MISC.NO.13/2014 DATED 05.04.2019 BY
ALLOWING THE REVISION PETITION WITH COSTS AND PASS SUCH
OTHER RELIEF MAY GRANT IN THE CIRCUMSTANCES AND FACTS OF
THE CASE, IN THE INTEREST OF JUSTICE.
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NC: 2024:KHC-D:3665
CRP No. 100005 of 2020
THIS C.R.P., COMING ON FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
Heard Shri. G. N. Narasammanavar, learned counsel for
the revision petitioner.
2. Present revision petitioner is filed against the order
passed on I.A. No.1 filed under Section 5 of the Limitation Act,
came to be rejected. Consequently, the petition in LAC
Miscellaneous No.13/2014 filed under Order XXI Rule 105 and
106 read with Section 151 of the Code of Civil Procedure, 1908
(for short 'CPC'), is dismissed.
3. Office has raised objection with regard to
maintainability of the petition.
4. However, Shri. G. N. Narasammanavar, learned
counsel for the revision petitioner submits that lenient view
may be taken and the Civil Revision Petition held to be
maintainable and sought for over ruling the office objection.
5. In order to appreciate the arguments of the counsel
for revision petitioner, it is just and necessary for this Court to
culled out Order XXI Rule 105 and 106 of CPC.
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"105. Hearing of application.
(1) The Court, before which an application
under any of the foregoing rules of this Order is
pending, may fix a day for the hearing of the
application.
(2) Where on the day fixed or on any other day
to which the hearing may be adjourned the applicant
does not appear when the case is called on for
hearing, the Court may make an order that the
application be dismissed.
(3) Where the applicant appears and the
opposite party to whom the notice has been issued by
the Court does not appear, the Court may hear the
application ex parte and pass such order as it thinks
fit.
106. Setting aside order passed ex parte,
etc.
(1) The applicant, against whom an order is
made under sub-rule (2) rule 105 or the opposite
party against whom an order is passed ex parte under
sub-rule (3) of that rule or under sub-rule (1) of rule
23, may apply to the Court to set aside the order, and
if he satisfies the Court that there was sufficient cause
for his non- appearance when the application was
called on for hearing, the Court shall set aside the
order or such terms as to costs, or otherwise as it
thinks fit, and shall appoint a day for the further
hearing of the application.
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(2) No order shall be made on an application
under sub-rule (1) unless notice of the application has
been served on the other party.
(3) An application under sub-rule (1) shall be
made within thirty days from the date of the order, or
where, in the case of an ex parte order, the notice was
not duly served, within thirty days from the date when
applicant had knowledge of the order."
6. On close reading of Rule 106 of Order XXI, it is
crystal clear that the time line under Order XXI Rule 106 of CPC
is to be strictly adhered to and it cannot be condoned by filing
an application under Section 5 of the Limitation Act.
7. View of this Court is supported by the judgment of
the Hon'ble Apex Court in the case of Damodaran Pillai and
others vs. South Indian Bank, reported in AIR 2005 SC 3460.
8. Relevant paragraphs of the said judgment reads as
under;
"11. The learned Judge, however, while arriving
at the said finding failed and/or neglected to consider
the effect of sub-rule (3) of Rule 106. A bare perusal
of the aforementioned rule will clearly go to show that
when an application is dismissed for default in terms
of Rule 105, the starting period of limitation for filing
of a restoration application would be the date of the
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order and not the knowledge thereabout. As the
applicant is represented in the proceeding through his
Advocate, his knowledge of the order is presumed.
The starting point of limitation being knowledge about
the disposal of the execution petition would arise only
in a case where an ex- parte order was passed and
that too without proper notice upon the judgment
debtor and not otherwise. Thus, if an order has been
passed dismissing an application for default, the
application for restoration thereof must be filed only
within a period of thirty days from the date of the said
order and not thereafter. In that view of the matter,
the date when the decree holder acquired the
knowledge of the order of dismissal of the execution
petition was, therefore, wholly irrelevant.
21. Hardship or injustice may be a relevant
consideration in applying the principles of
interpretation of statute, but cannot be a ground for
extending the period of limitation."
9. Applying the above principles of law to the facts of
the case, since the statute itself prescribes time line and fixes
the period of limitation to entertain a application filed under
Order XXI Rule 105 of CPC, this Court is of the considered
opinion that the dismissal of the petition is just and proper and
the remedy of revision is not maintainable.
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10. Accordingly, office objection is upheld and Civil
Revision Petition is dismissed as not maintainable.
Sd/-
JUDGE
SMM
