Karnataka High Court
Ravindra S/O Narayana Bawa Harijan vs The Assistant Commissioner And Anr on 5 November, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC-K:8207
WP No. 204696 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 204696 OF 2019 (LR-SEC)
BETWEEN:
RAVINDRA
S/O NARAYANA BAWA HARIJAN
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O: BHOSGA VILLAGE,
BASAVA KALYANA TALUK,
BIDAR DISTRICT - 585 327.
...PETITIONER
(BYSRI. GANESH SUBHASHCHANDRA KALBURGI,ADVOCATE)
Digitally signed
by SUMITRA AND:
SHERIGAR
Location: HIGH 1. THE ASSISTANT COMMISSIONER AND ANR
COURT OF BASAVAKALYANA SUB DIVISION,
KARNATAKA
BASAVAKALYANA - 585 327.
2. HARINATH S/O NINGU
AGE: 73 YEARS,
OCC: R/O: BHOSGA VILLAGE,
BASAVAKALYAN TALUK,
BIDAR DISTRICT - 575 327.
...RESPONDENTS
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NC: 2024:KHC-K:8207
WP No. 204696 of 2019
(BY SRI. G.B. YADAV HCGP FOR R1;
BY SRI SACHIN. M. MAHAJAN ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT/ ORDER IN THE NATURE OF CERTIORARI BY
QUASHING ORDER DATED 08.07.2019 PASSED BY THE
KARNATAKA APPELLATE TRIBUNAL AT BENGALURU IN
REC.MISC NO.57/2017, THE CERTIFIED COPY OF WHICH AT
ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)
This petition is directed against the impugned order dated
08.07.2019 passed in Rev.Misc.No.57/2017 by the KAT,
Bangalore, whereby the said petition filed by the petitioner under
Regulation 28(a) of the Karnataka Appellate Tribunal Regulations,
1979 and for consequential restoration of Appeal No.91/2003 filed
by the petitioner by setting aside the order dated 10.11.2009
dismissing the appeal for non-prosecution was rejected by the
KAT.
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2. Heard learned counsel for both sides and perused the
material on record.
3. A perusal of the material on record will indicate that
aggrieved by the order dated 16.04.2002 passed by the 1st
respondent - Assistant commissioner in favour of the 2nd
respondent under Section 77A of the Karnataka Land Reforms Act,
1961, the petitioner preferred an appeal in Appeal No.91/2003
before the KAT. It is contended by the petitioner that he had
preferred an appeal through his GPA Holder but did not take
necessary steps to prosecute the appeal on behalf of the petitioner
nor intimated the petitioner regarding progress of the case and it is
under these circumstances, the KAT proceeded to dismiss the
appeal for non-prosecution on 10.11.2009. It is also contended
that even the said order passed by the KAT dismissing the appeal
for non-prosecution was not intimated by the petitioner's GPA
Holder Prabhu s/o Kashiba Harijan, who expired on 04.08.2013
and petitioner was under the bonafide impression or belief that the
appeal was still pending till he came to know about the dismissal of
the appeal in the year 2016-17 when the 2nd respondent filed his
written statement in O.S.No.101/2016 filed by the petitioner against
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the 2nd respondent. It was contended that inability and omission on
the part of the petitioner in not taking steps to seek restoration of
the appeal within the prescribed period was due to bonafide
reason, unavoidable circumstance and sufficient cause and the
delayed period of 7 years 2 months and 8 days in filing the
Rev.Misc.57/2017 has been explained in the Affidavit in support of
the application filed under Section 5 of the Limitation Act for
condonation of delay. It was further contended that the KAT did
not consider the aforesaid facts and circumstances properly and
has proceeded to pass the impugned order rejecting the application
for condonation of delay filed by the petitioner as well as the main
review petition by passing the impugned order, which is assailed in
the present petition.
4. Per contra, learned counsel for the respondents would
support the impugned order and submits that there is no merit in
the petition and that the same is liable to be dismissed.
5. Before adverting to the rival contentions, it would be
apposite to refer to the recent judgment of the Apex Court in the
case of Mool Chandra vs. Union of India - 2024 SCC OnLine
SC 1878, wherein the Apex Court has reiterated that for the
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purpose of consideration of an application for condonation of delay,
it is the cause shown for condonation of delay and not the extent or
period of time / period for which the delay sought to be condoned.
In the instant case, a perusal of the material on record including the
Affidavit filed by the petitioner along with the application filed under
Section 5 of the Limitation Act is sufficient to come to the
conclusion that the reason assigned by the petitioner in not seeking
restoration of the appeal within the prescribed period constitute
valid and sufficient ground, inasmuch as it is the specific assertion
on the part of the petitioner that his inability and omission to seek
restoration of the appeal within the prescribed period due to
entrustment of appeal to his GPA Holder Prabhu s/o Kashiba
Harijan, who did not intimate the petitioner in this regard and upon
his expiry, the petitioner was not aware of the same till the 2nd
respondent filed his written statement in O.S.No.101/2016 only in
the year 2016. Under these circumstances, I am of the considered
opinion that inability and omission on the part of the petitioner in
filing the restoration application within the prescribed period was
due to bonafide reasons, unavoidable circumstances and sufficient
cause.
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6. It is also relevant to state that by adopting justice oriented
approach and in order to give one more opportunity in favour of the
petitioner to prosecute his appeal on merits, having regard to the
valuable proprietary and possesory rights of the parties involved in
the appeal, it would just and appropriate to set aside the impugned
order and allow the application for condonation of delay filed by the
petitioner and recall the order dated 10.11.2009 passed by the KAT
and restore the appeal to the file and dispose the same on merits
by imposing costs of Rs.25,000/- payable by the petitioner to the
2nd respondent.
7. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order dated 08.07.2019 passed in
Rev.Misc.57/2017 by the KAT, Bangalore, is hereby set aside.
(iii) The application I.A.1 filed by the petitioner under Section
5 of the Limitation Act stands allowed and the delay of 7 years 2
months 8 days in filing Rev.Misc.57/2017 is hereby condoned.
(iv) The aforesaid Rev.Misc.57/2017 is allowed and Appeal
No.91/2003 stands restored to the file of KAT, Bangalore, subject
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to the petitioner paying costs of Rs.25,000/- to the 2nd respondent
on the next date of hearing before the KAT.
(v) Petitioner and 2nd respondent undertakes to appear
before the KAT, Bangalore, in Appeal No.91/2003 on 02.12.2024
without awaiting further notice from the KAT, Bangalore.
(vi) All rival contentions on all aspects of the matter are kept
open and no opinion is expressed on the same.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
Srl.
