IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.11733/2019(GM-CPC) BETWEEN:
SMT. BHARATHI W/O LATE SRI T. N. THIMMAPPA AGED ABOUT 64 YEARS, R/O KULUME STREET NEAR KANAKA CLINIC KANAKAPURA TOWN, RAMANAGARA DISTRICT ... PETITIONER (BY SRI NANDISH GOWDA G.B., ADVOCATE FOR SRI R. B. SADASIVAPPA, ADVOCATE) AND:
SRI. D. PRASANNA KUMAR S/O SRI L. C. DHANANJAIAH AGED ABOUT 37 YEARS, R/AT NO.77, 14TH MAIN BTM 2ND STAGE, BENGALURU-560 076.
... RESPONDENT (BY SRI BOREGOWDA D., ADVOCATE FOR C/R) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 28.02.2019 PASSED BY THE COURT OF THE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT KANAKAPURA IN RA NO.5151/2018 ON THE APPLICATION UNDER SECTION 5 OF THE LIMITATION ACT VIDE ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner - plaintiff filed O.S. No.531/2014 for eviction of the defendant from the suit schedule property and for recovery of arrears of rent. The defendant served and unrepresented and he was placed exparte. The trial Court considering the evidence of PW.1 and the material documents – Ex.P1 to Ex.P7 by the judgment and decree dated 10.7.2017 decreed the suit and held that the plaintiff is entitled for recovery of Rs.6,00,000/- towards 12 months rent from the defendant and also directed the defendant to quit the suit property within two months and hand over the same to the plaintiff, failing which the plaintiff is entitled to take possession of the suit schedule property as per law.
2. Aggrieved by the said Judgment & decree, the respondent – defendant (tenant) filed Regular Appeal No.5151/2018 before the lower appellate Court. There was a delay of 165 days in filing the appeal. Therefore the respondent – defendant filed an application for condonation of delay along with the appeal. The petitioner – plaintiff filed objections to the said application.
3. The lower appellate court considering the application and the objections and after giving an opportunity to both the parties to adduce evidence by the impugned order dated 28.2.2019 allowed the application and condoned the delay with costs of Rs.5,000/- payable by the respondent – defendant to the petitioner – plaintiff within seven days from the date of the order. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Nandish Gowda G.B. for Sri R.B. Sadasivappa, learned counsel for the petitioner contended that the impugned order passed by the lower appellate court allowing the application for condonation of delay, is erroneous and contrary to the material on record. He would further contend that the lower appellate Court failed to notice that the respondent – defendant who has filed appeal, has not given sufficient reasons to condone the delay of 165 days and absolutely no reasons are assigned to condone the delay and the lower appellate Court ought to have dismissed the appeal on the ground of delay and laches. He would further contend that the respondent – defendant was aware of the proceedings before the trial Court and deliberately filed the appeal after 165 days and it is nothing but protracting the proceedings. Therefore he sought to allow the writ petition by quashing the impugned order passed by the lower appellate Court.
6. Per contra, Sri Boregowda .D., learned counsel for the respondent – caveator sought to justify the impugned order and contended that the trial Court proceeded to pass the exparte decree against the respondent – defendant. He further submits that the signature found on the suit summons does not pertain to the respondent – defendant and the respondent – defendant used to affix his signature in English language and signature on suit summons is in Kannada language. He also submits that the respondent – defendant came to know the decree passed in the suit only when he received the notice in the Ex. Petition No.2/2018 filed by the petitioner – landlord and thereafter he approached the advocate and after obtaining certified copy filed the appeal and in the circumstances, there was delay in filing the appeal. Therefore he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the present petitioner who is the plaintiff before the trial Court filed the suit for ejectment and recovery of rent. The present respondent-defendant was placed exparte in the original suit and the trial Court based on the oral and documentary evidence adduced and produced by the parties by the Judgment dated 10.7.2017 decreed the suit and held that the plaintiff is entitled for recovery of Rs.6,00,000/- towards 12 months rent from the defendant and also directed the defendant to evict the suit property within two months and hand over the same to the plaintiff. Being aggrieved, the respondent – defendant filed the appeal in R.A. No.5151/2018.
8. It is also not in dispute that there was delay in filing the appeal by the present respondent - defendant. In the affidavit accompanying the application for condonation of delay, the respondent – defendant who is the appellant before the lower appellate Court, has stated that in the original suit, he was not at all served and the signature found on the suit summons does not belong to him and he affix his signature in English language, but the signature on suit summons is in Kannada language. He came to know the decree passed in the suit only when he received notice in the Execution Petition No.2/2018 and thereafter he approached the learned counsel and applied for the certified copy and the certified copy received on 19.1.2018 and on the next day itself, the appeal came to be filed. Due to the above reasons, there was delay in filing the appeal.
9. On the objections raised by the plaintiff, the lower appellate Court permitted the parties to adduce evidence and the present respondent – defendant (appellant before the lower appellate Court) was examined as PW.1 and marked the documents Ex.P1 to P5. The present petitioner – plaintiff was examined as RW.1 and got marked the documents Ex.R1 to Ex.R5. After considering the entire oral and documentary evidence, the lower appellate Court come to the conclusion that there is material dispute about the signatures and as per the Judgment & Decree passed by the trial Court, huge amount is involved in the matter and further the defendant contended in his affidavit that he came to know about the decree passed in the original suit only when he received notice in Execution Petition No.2/2018 and immediately rushed to the Court and applied for certified copies and thereafter filed the appeal and in the circumstances, there is delay of about 165 days delay in preferring the appeal. Taking into consideration the above facts and circumstances of the case, the lower appellate Court was of the opinion that the delay has to be condoned imposing costs as no hardship will be caused to the present petitioner – plaintiff if delay is condoned and on the other hand if delay is not condoned, the defendant would be put to great hardship. Accordingly, the lower appellate Court allowed the application filed by the defendant for condonation of delay by imposing costs.
10. The suit filed by the present petitioner for ejectment and recovery of money. Admittedly, the respondent - defendant was placed exparte before the trial Court. The suit came to decreed. It is also not in dispute that there was delay in filing the appeal before the lower appellate Court. In the affidavit accompanying the application for condonation of delay, the defendant has categorically stated that in the original suit, he was not at all served and he came to know the decree passed in the suit only when he received notice in the Execution Petition No.2/2018 and immediately after obtaining certified copies filed the appeal. The delay was not intentional and due to the bonafide reasons as he was placed exparte in the original suit.
11. In the present case, the rights of the parties are involved in respect of the immovable property. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In view of the above, the lower appellate Court taking into consideration entire circumstances, rightly condoned the delay of 165 days in preferring the appeal with costs of Rs.5,000/-. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order, in exercise of power under Article 227 of the Constitution of India.
12. Accordingly, the writ petition is dismissed.
However it is made clear that if the respondent – defendant (tenant) has not paid the rent upto date, it is always open for the petitioner – plaintiff to file necessary application in accordance with law.
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JUDGE