Karnataka High Court

Sri. Srinivasa Reddy T vs Smt Madamma W/O Late Veeraiah Since Dead ... on 18 June, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 18TH DAY OF JUNE, 2025

                                          BEFORE
                        THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        WRIT PETITION NO. 17400 OF 2025 (GM-CPC)
                 BETWEEN:

                       SRI. SRINIVASA REDDY T.,
                       S/O LATE THIMAPPA REDDY,
                       AGED ABOUT 66 YEARS,
                       RESIDING AT NO. 3/1A, HULIMAVU,
                       BANNERUGHATTA ROAD,
                       NEAR SRIRAMA TEMPLE,
                       BENGALURU - 560 076.
                                                                 ...PETITIONER
                 (BY SRI. D.R. RAVISHANKAR, SR. COUNSEL FOR
                     SRI. BEERESH H., ADVOCATE)

                 AND:

Digitally signed 1.       SMT. MADAMMA,
by NAGAVENI               W/O LATE VEERAIAH,
Location: High            SINCE DEAD REPRESENTED BY LR
Court of
Karnataka
                 1(A). H.V. SHIVANNA
                       SON OF LATE VEERAIAH,
                       AGED ABOUT 65 YEARS,
                       NO.2, B-3, BDA APARTMENT,
                       H.V.HALLI, R.R.NAGARA,
                       BANGALORE - 560 098.

                 2.       SMT. ARASAMMA,
                          W/O LATE CHIKKARAMMAIAH,
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         AGED ABOUT 58 YEARS,
         RESIDING AT CHANNASANDRA VILLAGE,
         UTTARAHALLI HOBLI,
         BANGALORE SOUTH TALUK - 67.

3.       SMT. NETHRAVATHI.K,
         WIFE OF M. NARAYANAMURTHY,
         AGED ABOUT 48 YEARS,
         NO.41/4, LAKSHMI NILAYA 1ST MAIN,
         HOSAHALLI, VIJAYANGARA,
         BANGALORE - 560 040.

4.       SRI. KANAKAMAL
         SINCE DEAD REP BY LRS

4(A). TERAJ CHAWAT @ THEJMAL
      SON OF LATE KANAKMAL,
      AGED ABOUT 49 YEARS

4(B). DINESH KUMAR
      SON OF LATE KANAKMAL,
      AGED ABOUT 46 YEARS

4(C). MAHAVEER KUMAR,
      SON OF LATE KANAKMAL,
      AGED ABOUT 37 YEARS

         SL. NO. 4(A) TO (C) ARE
         RESIDING NO.996/1, SERVICE ROAD,
         RPC LAYOUT, OPP SBI VIJAYANAGARA,
         BANGALORE - 560 040.

5.       N. CHINNAPPA,
         SINCE DEAD REP BY LRS
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5(A). SMT. SHANTHAMMA,
      W/O N. CHINNAPPA,
      AGED ABOUT 60 YEARS,
      RESIDING AT NO. 1268/3, 9TH MAIN,
      YESHWANTHPUR,
      KAMALANAGAR EXTENSION,
      BANGALORE - 560 022.

6.       SHANTHAA KUMAR
         S/O NARAYANAPPA
         AGED ABOUT 70 YEARS,
         RESIDING AT NO. 217, 1ST FLOOR,
         BASAVESHWARANAGAR,
         BANGALORE - 560 079.

7.       UMAPATHY
         SINCE DEAD REP BY LR'S.

7(A). HARIHARAN K,
      S/O LATE K UMAPATHI
      R/AT NO 217, 1ST FLOOR,
      BASAVESHWARANAGARA,
      BENGALURU - 560 079.

8.       SMT. NETHRAVATHI,
         D/O LATE C.Y. RAMASWAMY,
         AGED ABOUT 60 YEARS,
         RESIDING AT NO. 171,
         NEAR SAMARTHANARAYANA ASHRAM,
         MARUTHINAGAR, NAGARABHAVI 1 STAGE,
         BANGALORE - 560 072.

9.       SHANTHAMMA
         WIFE OF LATE RAJU,
         AGED ABOUT 65 YEARS,
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         NO.25/2B, SOMANNA BUILDING
         KANAKAPURA MAIN ROAD
         NEAR SRINIVASA KALYANA MANTAPA,
         JARAGANAHALLI, J.P. NAGARA,
         BANGALORE - 78.

10.      SMT. SHANTHAMMA
         W/O N. CHINNAPPA,
         AGED ABOUT 67 YEARS,
         RESIDING AT NO. 1268/13,
         9TH MAIN, YESHWANTHPUR,
         KAMALNAGAR EXTENTION,
         BANGALORE - 560 022.

11.      SMT. SAMPATHKUMARI,
         WIFE OF SHIVANNA,
         AGED ABOUT 58 YEARS,
         NO.3, BLOCK-B3, BDA APARTMENT,
         HALAGEVADERAHALLI, R.R.NAGARA,
         BENGALURU - 560 098.
                                             ...RESPONDENTS
      THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
MISC NO. 116/2025 PASSED BY THE I ADDITIONAL CIVIL
JUDGE      (SENIOR    DIVISION)     BANGALORE     DISTRICT,
BANGALORE AND ETC.

      THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:
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CORAM:     HON'BLE MR JUSTICE M.NAGAPRASANNA


                         ORAL ORDER

The petitioner is before this Court, seeking the following

prayer:

"a) Call for records in Misc No 116/2025 passed by the I Additional Civil Judge (Senior Division) Bangalore District, Bangalore.

b) Set-aside the Order in Misc No 116/2025 dated 16-06-2025 passed by the I Additional Civil Judge (Senior Division) Bangalore District, Bangalore.

c) Pass such other order/further orders as this Hon'ble Court deems fit under the facts and circumstances of the case."

2. Heard the learned Senior counsel,

Sri. D.R. Ravishankar, appearing for the petitioner and have

perused the material on record.

3. The petitioner was not a party in O.S.No.20/1998.

The petitioner is said to have come to know of a compromise

entered into between the parties to the suit in O.S.No.20/1998

on 23.06.1998. The issue is not with regard to the merit of the

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claim of the petitioner. The petitioner files miscellaneous

application before the concerned Court alleging that the

compromise decree was by playing fraud and misrepresentation

and the same needs to be recalled. The concerned Court passes

the following order:

"Heard counsel for the petitioners.

Perused the contents of the petition and documents.

It is the contention of the petitioner that, the suit in O.S.No.20/1998 ended in compromise and the parties to the said suit got the compromise decree dated 23-06- 1998 by playing the fraud and misrepresentation which is required to be recalled.

It is the contention of the petitioner that, he is not the party to the said compromise and it is therefore he can maintain separate miscellaneous petition. In this regard the counsel for the petitioner relied upon the judgments reported in (1993) 1 SCC 581, 2022 LiveLaws (SC) 442, 2024 SCC OnLine SC 3720, (2020) 6 SCC 629, RFA.No.2170/2019, W.P.No.121545/2020, W.P.No.9309/2024, (1994) 1 SCC 1, AIR 1996 SC 2202, (2008) 3 SCC 556. Wherein the Hon'ble Superior courts observed a civil miscellaneous petition can be maintained for the recall of compromise petition. However, the compromise decree passed on O.S.No.236/1998 and this petition is filed on 11-06-2025.

Therefore, there is a enormous delay in filing this petition and even the application for condonation of delay is also not file. Therefore, though the petition is maintainable but without application for condonation of delay the petition cannot be maintained. It is also further pertinent to note that, Article 137 of the Limitation Act mandates on part of the petitioner file petition within 3years from the date of when the right to accrues. It is therefore, apparently the petition is barred by law of limitation. Even in the petition

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also it has not been mentioned when the right to apply accrues. Hence, I proceed to pass the following:

:: O R D E R : :

The petition is hereby dismissed as not maintainable without application for condonation of delay."

The petition is dismissed solely on the score that the

application is not maintainable without it accompanying an

application for condonation of delay.

4. Learned Senior counsel submits that such hyper

technical view in deciding an application or a petition, is held to

be untenable by the Apex Court in plethora of judgments.

He would seek to place reliance upon the judgments rendered

in the cases DWARIKA PRASAD (D), THR. LRS. V. PRITHVI

RAJ SINGH1 and BHAGMAL AND OTHERS V. KUNWAR LAL

AND OTHERS2.

2024 SCC OnLine SC 3828

(2010) 12 SCC 159

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5. In the case of DWARIKA PRASAD supra, the Apex

Court has held as follows:

"9. We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the restoration application filed by the Appellant under Order IX Rule 13 of CPC. It is well settled that Courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out the matter on merits. Further, we cannot let the party suffer due to negligent or fault committed by their counsel. This principle has been enunciated by this court in the case of Rafiq v. Munshilal1, quoted as follows:

"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a

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tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order....."

10. In the present case, the appellant has trusted his counsel to manage the suit proceedings. However, he was not made aware of the ex-parte decree by his previous counsel. It is only after the appointment of the new counsel, the appellant got to know about the exparte decree. Therefore, the Additional Sessions Judge ought not to have exercised the revisional jurisdiction in interfering with the order of the Trial Court where it had exercised its discretion in setting aside the ex-parte decree for justifiable reasons accepting the reasons given by the defendant-appellant.

11. The Appellant has relied upon the following judgments in support of his submissions. In Bhagmal v. Kunwar Lal2 this Court held as follows;

"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the

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execution notice. This was nothing, but a justification made by the appellant-defendants for making Order 9 Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant- defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5.

13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice."

12. From the above cases, it is clear that there was no need to file a separate application for condonation of delay in the present case as well. The High Court has erred in taking a hyper technical view and concluding that there was violation of mandatory provision of law. Endorsing such a view would effectively mean ignoring the purpose of judicial procedure. The procedure cannot stand in the way of achieving just and fair outcome. In the present case, the Appellant acted bona fide and diligently. His conduct does not violate any rule of law.

(Emphasis supplied)

6. In the case of BHAGMAL supra, the Apex Court has

held as follows:

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"12. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice.

This was nothing, but a justification made by the appellant- defendants for making Order 9 Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant-defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5.

13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice. Here was a party which bona fide believed the assurance given in the compromise panchnama that Respondent 1-plaintiff would get his suit withdrawn or dismissed. The said compromise panchnama was made before the elders of the village. Writing was also effected, displaying that compromise. The witnesses were also examined. Under such circumstances, the non-attendance of the appellant-defendants, which was proved in the further proceedings, was quite justifiable. The appellant-defendants, when ultimately came to know about the decree, had moved the application within 30 days. In our opinion that was sufficient.

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14. Shri Acharya, learned counsel appearing on behalf of the respondents tried to argue on the basis of Article 123 of the Limitation Act. However, in our opinion, Article 123 cannot, in the facts of this case persuade us to take the view that the limitation actually started from the date of knowledge, as the appellant-defendants had no notice of the decree or the proceedings which the respondents had promised to terminate.

15. Shri Acharya then tried to persuade us by suggesting that unless the application was filed for condonation of delay, the court had no jurisdiction to entertain the application for setting aside the decree. He has based this contention on the basis of a reported decision of this Court in Sneh Gupta v. Devi Sarup [(2009) 6 SCC 194] and more particularly, the observations made in para 70 therein. In our opinion, the facts of this case were entirely different, as it was held in that case that the appellant had knowledge of passing of the compromise decree and yet she had not filed the application for condonation of delay. That is not the situation here. Even in this case, there is a clear-cut observation in para 57, as follows : (Sneh Gupta case [(2009) 6 SCC 194] , SCC p. 215)

"57. ... However, in a case where the summons have not been served, the second part shall apply."

16. The Court was considering Article 123 of the Limitation Act. In our opinion, in this case, the limitation must be deemed to have started from the date when the appellant-defendants came to know about the decree on 22-6-1988. An application under Order 9 Rule 13 was filed within 30 days from that date and, therefore, it is clear that it was within time. At any rate, even if it is held that the limitation started from the date of decree, there was a satisfactory explanation of the delay, if any.

17. We, therefore, allow this appeal, set aside the judgment of the High Court and restore that of the appellate court. The suit will now proceed before the trial court in pursuance of these orders. Under the circumstances, the

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proceedings of the suit shall be expedited. There shall be no costs."

(Emphasis supplied)

The Apex Court holds that the concerned Court should not

take a hyper technical view in deciding the issue.

7. In the light of the aforesaid judgments of the Apex

Court supra, the order of the concerned Court is rendered

unsustainable. Since the petition is dismissed without issuing

notice to any of the defendants, I deem it appropriate to set

aside the order and remit the matter to the hands of the