IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR CIVIL REVISION PETITION NO.434 OF 2016 C/W. CIVIL REVISION PETITION NO.435 OF 2016 BETWEEN:
1. Smt. C.N. Gowramma W/o. Late C.T. Veeranna Aged about 80 years.
2. Sri. C.V. Prabhakar S/o Late C.T. Veeranna Aged about 59 years 3. Smt. C.V. Geetha D/o Late C.T. Veeranna Aged about 49 years 4. Sri C.T. Gopalswamy S/o Thimmaiah Aged about 87 years Residing at Challakere Town Chitradurga District. .Petitioners (common) (By Sri.B.M. Siddappa, Advocate) AND:
The Assistant Commissioner-cum- Special Land Acquisition Officer Chitradurga Sub-division Chitradurga. .Respondent (common) (By Sri.N. Balaji, AGA) **** These Civil Revision Petitions are filed under Section 115 of CPC, against the judgment dated 27.08.2016 passed in MA No.14/2014 on the file of the I Additional District and Sessions Judge, Chitradurga, dismissing the appeal filed under Sec.54(1) of Land Acquisition Act.
These Civil Revision Petitions coming on for Orders this day, the Court made the following:
ORDER The petitioners have filed this revision petition challenging the impugned judgment and order dated 27.08.2016 passed in M.A.No.14/2014 by the Court below rejecting the application in I.A.No.1 filed by the petitioners under Section 5 of the Limitation Act.
Pursuant thereto, the Court below has proceeded to dismiss the appeal filed by the appellants.
2. Though the matter is posted for orders, with the consent of both the learned counsel for the petitioners and learned AGA, the matter is taken up for final disposal.
3. Learned counsel on behalf of the petitioner contended that they have preferred the said M.A.No.14/2014 against the order dated 07.06.2011 passed by the Trial Court in LAC NO.10/1993. The prayer made in the appeal was for enhancement of the compensation awarded by the Trial Court in favour of the petitioners. The Trial Court having passed the order on 07.06.2011, the petitioners aggrieved by the same have preferred the appeal on 30.06.2014 along with the application under Section 5 of the Limitation Act seeking condonation of delay of 3 years 23 days in preferring the appeal.
4. It is contended on behalf of the petitioners that in the affidavit in support of the application, the petitioner No.1(a) Gowramma examined herself as PW.1 and documents marked as Ex.P1 and P2 on behalf of the petitioners.
5. It is also contended that Railway Department having acquired the land belonging to the petitioners, the deceased husband and brother-in-law of petitioner No.1 (a) were in-charge of conducting the case on behalf of the petitioners. In fact, it is contended that the original claimants-appellants - C.T. Veerappa had expired during the proceedings before the reference Court itself and prior to his death, he was in-charge of looking after the case.
6. It is also contended that after the said demise of C.T. Veerappa, his brother was in-charge of conducting the case on behalf of the petitioners.
Petitioner No.1 is the wife of late C.T.Veerappa and petitioner Nos. 2 and 3 are their children.
7. Before the Lower Appellate Court, the petitioners contended that on account of family problems, the relationship between the petitioners and brother of late C.T. Veerappa were not cordial and as such, he did not inform the petitioners about the case or the proceedings. It is also contended that under the circumstances, the said brother of late Veerappa did not inform the petitioners about passing of the award and he also did not take any steps to challenge the same. Petitioner No.1 being aged person suffering from old age ailments and without anybody's support, she was not in a position to prefer the appeal before the Lower Appellate Court within the prescribed period. It was also contended that since the petitioner Nos. 2 and 3 being the children of petitioner No.1 were busy with their own commitments, the entire responsibility of looking after the case, collecting the papers and giving necessary instructions to the learned counsel to prefer the appeal rested heavily on petitioner No.1 which caused the unavoidable delay of three years and 23 days in preferring the appeal before the Lower Appellate Court. Petitioners also contended that in order to establish the ailments of petitioner No.1, she has produced Ex.P1 and P2 which is not challenged or impeached by the respondent in the Court below.
8. The petitioners have contended that the delay in preferring the appeal before the Lower Appellate Court was due to bonafide reasons, unavoidable circumstances and there is sufficient cause shown for delay. The petitioners have a good case to urge on merits. Having regard to the fact that the valuable legal rights and property rights of the petitioners are involved in the appeal filed before the Lower Appellate Court, if the delay in preferring the appeal is not condoned, petitioners would be put to irreparable loss, hardship and justice would suffer. It is contended that a liberal approach has to be adopted while considering an application for condonation of delay and the Court below has clearly committed an error in rejecting the application filed by the petitioners under Section 5 of the Limitation Act by adopting a rigid and hyper technical approach which has resulted in miscarriage of justice.
9. Per contra, the learned AGA appearing on behalf of the respondent would support the impugned order.
10. I have given my anxious consideration to the rival submissions and perusal of the material on record.
11. As rightly pointed out by the petitioners, the Court below has committed a serious error in failing to consider and appreciate the unimpeached, uncontroverted and unchallenged evidence of PW.1 as well as the documents produced by her which would clearly establish the inability and omission on the part of the petitioners to prefer the appeal before the Lower Appellate Court within the prescribed period was due to bonafide reasons, unavoidable circumstances and sufficient cause.
12. The Court below has mis-directed itself in adopting a rigid and hyper technical approach to the matter without appreciating that the cause for delay had been properly and satisfactorily explained by the petitioners. Having regard to the fact that the valuable property and legal rights of the petitioners would be affected, it was essential that the delay in preferring the appeal was condoned and an opportunity was given to the petitioners to prosecute the case on merits. It is well settled that Rules of procedure have to be applied in a liberal manner and the Court has to adopt a justice-oriented approach while considering an application for condonation of delay.
13. Under the circumstances, apart from the fact that the impugned order clearly suffers from non- application of mind and the Court below has acted illegally with material irregularity in the exercise of its jurisdiction. The material on record established that the Court below erred in not condoning the delay which had been properly and satisfactorily explained by the petitioners. Consequently, the impugned order and judgment passed is unjust, unfair and contrary to the material on records the same requires interference by this Court under Section 115 of the Code of Civil Procedure.
14. It is needless to state that the Court below failed to consider and appreciate that if the delay in preferring the appeal was not condoned and if the petitioners were not given an opportunity to prosecute the appeal on merits, they would put to irreparable loss, hardship and justice would suffer.
15. Under the circumstances, I am of the opinion that the impugned judgment and order passed by the Court below warrants interference at the hands of the Court.
16. In view of the aforesaid discussion, I pass the following:
ORDER 1. * CRP Nos. 434/2016 and 435/2016 are allowed 2. The impugned judgment and order passed in M.A.No.14/2014 *and M.A.No. 13/2014 on the file of I Additional District and Sessions Judge, Chitradurga * are set aside.
3. I.A.No.1 filed by the petitioners in M.A.No.14/2014 * and M.A.No. 13/2014 for condonation of delay under Section 5 of Limitation Act hereby stands allowed.
4. the appeal in M.A.No.14/2014 *and M.A.No. 13/2014 * are restored to the file of the lower appellate court.
5. The matter is remitted back to the Lower Appellate Court to dispose of M.A.No.14/2014 *and M.A.No.13/2014 on merits by granting equal opportunity to both sides.
* Corrected Vide Court order dated: 29.03.2021 * Inserted vide Court order dated: 29.03.2021 Both the parties undertake to appear before the Lower Appellate Court on 18.12.2019 without further notice from the Court.
The civil revision * petitions are allowed in the above terms. Ordered accordingly.
Sd/- JUDGE SSD * Corrected vide Court order dated: 29.03.2021.