Karnataka High Court
Smt Sumangala vs Smt Poornima H S on 8 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:45189
MFA No. 8803 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8803 OF 2023 (CPC)
BETWEEN:
1. SMT. SUMANGALA
W/O. SRI SURESH
AGED 70 YEARS
RESIDENT AT
BELLAVARA ESTATE
VENKATIPET POST
BELOOR TALUK
HASSAN DISTRICT - 573 215
2. SMT. LALITHA
W/O LATE SHANTHA KUMAR
D/O LATE H M BASAPPA
AGED ABOUT 67 YEARS
RESIDING AT
OPP. BASAWESHARA TEMPLE
SOMWARPET TOWN
KODAGU DISTRICT
Digitally signed by
REKHA R
Location: High 3. SMT. SHANKUNTALA
Court of Karnataka
W/O LATE SRI KEETHIRAJ
AGED 65 YEARS
RESIDING AT
SINGARAVALLI ESTATE
BELUR TALUK
HASSAN DISTRICT PIN CODE - 573 215
4. SMT. NAGARATHNA
W/O LATE SRI SHIVALINGAPPA
AGED 60 YEARS
R/AT 450 GURUKRUPA
K N AGRAHARA K R MOHALLA
MYSORE - 570 024
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NC: 2024:KHC:45189
MFA No. 8803 of 2023
5. SMT. LOLAKSHI
W/O. SRI LINGARAJU
AGED 58 YEARS
R/AT NO 584/2, B M ROAD
SAKLESHPUR - 573215
HASSAN DISTRICT
...APPELLANTS
(BY SRI. N. RAVINDRANATH KAMATH, SENIOR COUNSEL
FOR SMT. VANAJAKSHI, ADVOCATE)
AND:
1. SMT. POORNIMA H.S.
W/O. LATE H.B. SHIVAKUMAR
AGED ABOUT 55 YEARS
R/A HOSAPATTANA VILLAGE
NANJARAYAPATTANA
KUSHALNAGAR
KODAGU DISTRICT
2. SMT. VARSHA
W/O. SRI GURUBASAPPA
AGED ABOUT 26 YEARS
R/AT B.M. ROAD
BALUPET HASSAN DISTRICT
3. SMT KOMALA
W/O SRI. B. SHIVAKUMAR
AGED ABOUT 24 YEARS
R/A HOSAPATTANA VILLAGE
NANJARAYAPATTANA
KUSHALNAGAR
KODAGU DISTRICT
...RESPONDENTS
(BY SRI. SRINIVAS L., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(s) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
05.12.2022 PASSED ON I.A.NO. II/2021 IN OS.NO.67/2021 ON
THE FILE OF THE SENIOR CIVIL JUDGE, SOMWARPETE,
DISMISSING THE APPLICATION FILED UNDER ORDER XL RULE
1 OF CPC.
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NC: 2024:KHC:45189
MFA No. 8803 of 2023
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for appellants and also learned
counsel appearing for respondents.
2. There is delay of 270 days in filing this appeal.
The reasons assigned in the affidavit accompanying
application is that the advocate who appeared on behalf of
appellants has not communicated the dismissal of the
application filed under Order 39 Rule 1 and 2 r/w Section
151 CPC and the same is sworn to in paragraph No.4 of
the affidavit. It is stated that they have changed the
advocate and handed over the case to another advocate.
While examining all the records, new advocate informed
them that the application for appointment of court receiver
was dismissed and it was shocking to know about the
same. Immediately, they have applied for copy on
31.10.2023 and received on 20.11.2023 and filed this
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appeal. In this process there is a delay in filing the appeal
and the same is unintentional and bonafide and delay has
to be condoned.
3. Learned counsel for respondents filed statement
of objections contending that appellants were having
knowledge of the dismissal of the application. Learned
counsel in support of the contention along with statement
of objections produced the entire order sheet in
O.S.No.67/2021 and brought to the notice of this Court
that immediately after dismissal of the application, the
trial Court has framed issues and posted the matter for
evidence on 03.01.2023. On the very date, the plaintiff
was present and filed affidavit and examined himself as
PW-1 and got marked Ex.P1 to 30 and the case was
posted for cross-examination of PW-1. Even after dismissal
of application, the plaintiff did not waste time and on the
very next date of fixing the date for evidence, affidavit is
filed and got examined himself as PW-1 and persued the
proceedings through the same advocate and now contend
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that he was not having knowledge of dismissal of the
application.
4. Learned counsel in support of his arguments
also relied upon the judgments of this Court and contend
that law of limitation cannot be construed and interpreted
to take away accrued rights. It is not an equitable statute,
but a statute of repose. Learned counsel would also
contend that sufficient cause cannot be so liberally
construed for condoning the delay if the litigant's conduct
has been one of gross negligence, inaction and smacks of
malafides. Duty upon the litigant to be vigilant and follow
up the matter with advocate and cannot cast the entire
blame on the advocate for showing sufficient cause.
Affidavit of condonation of delay must establish that
sufficient cause existed for all other applicants. Learned
counsel has relied upon almost 12 judgments with regard
to decisions taken by this Court with regard to delay
wherein sufficient cause is shown and this Court cannot
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show lenience when false affidavit is filed before this
Court.
5. Having regard to the submissions of learned
counsel appearing for appellants and also learned counsel
for respondents more particularly, the sworn affidavit of
the appellants, wherein it is categorically stated that
advocate on record did not intimate the dismissal of the
application and has rightly pointed out by learned counsel
for respondents that immediately after dismissal of the
application, it is the question before this Court that on the
very next date when the date is fixed for the plaintiffs
evidence, the appellant himself filed affidavit and got
marked Ex.P1 to 30 without seeking any single date for
leading evidence and the same discloses that the very
allegations made against the advocate that he did not
inform about the dismissal of the said application cannot
be accepted. No doubt it is sworn in the affidavit that
advocate has been changed and even a copy of the same
is also furnished.
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6. Having perused the material on record the
advocate on record who was before the Court representing
the appellants and also persuing the matter diligently, the
appellant counsel would make submission that the
advocate did not inform the same and even on perusal of
the affidavit also, nothing is stated on what date he came
to know about the said order and bald affidavit is filed
stating that after changing of advocate, he came to know
about the dismissal of application and even particular date
of knowledge of dismissal of application came to know also
not stated in the affidavit and when appellant persued the
matter with the same advocate, immediately after
dismissal of the application, led the evidence and also the
very same advocate who examined the appellants on the
very next date of fixing for evidence. Hence, it is very
clear that appellant has not approached the Court with
clean hands and makes the allegations against advocate
and also falsely sworn to the affidavit that he was not
having knowledge of dismissal of application. If he had
persued the proceedings before the trial Court with any
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other advocate immediately, then there would have been
force in the contention of the learned counsel for
appellants that he was not having the knowledge of
dismissal of application. The very material discloses the
fact that he had persuaded with the same advcoate in the
very next month of dismissal of application i.e., in January
2023 and the application was dismissed during December
2022 and thus appellants have failed to give proper
reasons for condonation delay of 270 days in filing the
appeal. I do not find any reasons in the affidavit
accompanying application to condone the delay of 270
days in filing the appeal and the reasons are far from
truth.
7. Hence, delay application is rejected and
consequently, appeal is also dismissed.
SD/-
(H.P.SANDESH)
JUDGE
RR
