IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR C.R.P. NO.117 OF 2016 BETWEEN:
DR.G.NARAYANA S/O GONCHAGARI GIRIYAPPA AGED ABOUT 67 YEARS R/AT NO.8, RED OAK COURT, MOLINE, ILLINOIS, U.S.A. REPRESENTED BY HIS BROTHER AND POWER OF ATTORNEY HOLDER SRI.G.RAMAKRISHNA NO.1344, III CROSS, VIJAYANAGAR NORTH, BENGALURU - 560 079.
(BY SRI. H.N.SHASHIDHARA, ADV.) AND:
1. WYSCARE SECURITIES PVT. LTD., MEMBERS, BANGALORE STOCK EXCHANGE LTD., 1/1, I MAIN ROAD GANDHINAGAR BENGALURU - 560 009 BY ITS MANAGING DIRECTOR 2. SRI.KAJA RAMESH S/O YUGANDHARA SHRESTI M/S. GANESH STOCK AND …PETITIONER SHARE BROKERS, NO.19, I FLOOR, RAMOJI ROAD BASAVANAGUDI BENGALURU - 560 004 (V/O DTD. 22.11.17, NOTICE TO R1 & R2 HELD SUFFICIENT) … RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED: 01.02.2016 PASSED ON I.A.NO.1 IN MISC NO.660/2013 ON THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-18). REJECTING THE I.A. 1 FILED BY THE PETITIONER UNDER SEC.5 OF THE LIMITATION ACT.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is preferred by the petitioner aggrieved by the impugned judgment and order dated 01.02.2016 passed by the XIX Additional City Civil and Sessions Judge, Bengaluru City (CCH-18) whereby the Court below rejected the application-I.A. No.I filed by the petitioner under Section 5 of the Limitation Act in Misc. No.660/2013 and consequently, dismissed the Miscellaneous Petition also.
2. Respondent having been served with notice of this revision petition, they have not chosen to enter appearance or be represented in this revision petition.
3. Under these circumstances, having regard to the fact that the respondents have chosen to remain unrepresented, this revision petition is taken up for final disposal.
4. The petitioner instituted a suit in O.S. No.4413/2006 against the respondents for recovery of a sum of RS.7,75,000/- together with interest at 21% p.a. from the date of suit till the date of realization from the respondents and for other reliefs.
5. The said suit was decreed by the Court below on 17.03.2008, pursuant to which, the petitioner filed Execution Petition in Ex. No.1647/2009 before the Court below.
6. Aggrieved by the said exparte judgment and decree passed by the Court below, respondents filed Miscellaneous No.402/2010 under Order 9 Rule 13 of CPC seeking to set aside the exparte judgment and decree. By order dated 03.03.2012, the Court below allowed the said Misc. No.402/2010 and restored the suit by setting aside the exparte judgment and decree.
7. After restoration of the said suit, the matter was posted before the Court below on 27.11.2012. It is contended that on that day, despite attempt made by the petitioner, he was not in a position to get necessary information from his counsel and proceed with the matter. The Court below dismissed the suit for non-prosecution on 27.11.2012 and since the petitioner was not in station, it was not possible for him to obtain certified copies to file Miscellaneous Petition within the prescribed period. The delay in filing the miscellaneous Petition was due to bonafide reasons, unavoidable circumstances and for sufficient cause.
8. It was contended by the petitioner in the Miscellaneous Petition as well as in the affidavit in support of the application-I.A. No.I filed by him under Section 5 of the Limitation Act that the petitioner did not deliberately or intentionally avoid appearing before the Court below. The petitioner, who resides in USA was represented by his GPA Holder, who was highly diligent in prosecuting the suit. However, due to unavoidable circumstances, it was not possible for the GPA Holder of the petitioner to appear before the Court below and subsequently, filed the Miscellaneous Petition within the prescribed period. Under these circumstances, the petitioner requested the Court below to condone the delay in filing the Miscellaneous Petition and to allow the Miscellaneous Petition, which was dismissed for non-prosecution on 27.11.2012 and to restore the suit to the file.
9. It is relevant to state that the respondents- defendants having been served with the notice of the Miscellaneous Petition as well as I.A. No.I for condonation of delay remained exparte in the Miscellaneous Petition and did not contest the same. The GPA Holder of the petitioner examined himself as PW.1. After hearing the learned counsel for the petitioner, the Court below proceed to reject I.A. No.1 filed by the petitioner on the ground that he had not made out sufficient cause for condondation of delay. Consequently, Miscellaneous Petition also came to be dismissed. It is this order, which is challenged by the petitioner in the present review petition.
10. Learned counsel for the petitioner submits that Court below committed an error in not considering and appreciating unimpeached, uncontroverted and unchallenged pleadings and evidence on record of the petitioner, which conclusively established that the inability and omission on the part of the petitioner to be present before the Court on 27.11.2012, as well as to file miscellaneous petition within the prescribed period was due to bonafide reasons, unavoidable circumstances and sufficient cause. It is also contended that the valuable legal rights of the petitioner are involved in the suit and the petitioner should not be deprived of the same on account of certain lapses, if any, on the part of the counsel for the petitioner or his GPA Holder. It is also contended that the petitioner has a good case to urge on merits and as such, if an opportunity is not granted to the petitioner to prosecute the suit on merits, he would be put to irreparable loss and injury and justice would suffer. Under these circumstances, the petitioner requested this Court to allow the review petition by setting aside the impugned order passed by the Court below.
11. As stated above the respondents having been served with notice, they have not chosen to be represented in this review petition and they have not contested the same.
12. I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and perused the materials on record.
13. As rightly contended by the learned counsel for the petitioner, the Court below has committed grave and serious error of law in adopting an hyper-technical approach in rejecting the application filed by the petitioner under Section 5 of the Limitation Act. The Court below has mis-directed itself in not considering and appreciating the unimpeached, uncontraverted and unchallenged pleadings and evidence of the GPA holder of the petitioner, who was examined as PW.1, which would clearly establish that the inability and omission on the part of the petitioner to be present before the Court on 27.11.2012 and also filed the Miscellaneous Petition within the prescribed period was clearly due to bonafide reasons, unavoidable circumstances and sufficient cause. It is well settled that rules and procedure should not be used as a tripping mechanism to deprive the valuable legal rights of the petitioner. It has been repeatedly held by the Apex Court, this Court and various other High Courts that while considering the application for condonation of delay, it is essential to adopt justice oriented and liberal approach in the matter. Despite petitioner citing the several judgments in the Court below, the Court below has clearly acted illegally and with material irregularities in exercise of its jurisdiction in refusing and declining to condone the delay in filing the petition, particularly, when the pleadings and evidence on the records remained unchallenged. As stated above, the materials on record would establish that it is essential to give one more opportunity to the petitioner to prosecute the suit by condoning delay and allowing the Miscellaneous Petition.
14. In view of the aforesaid discussion, I pass the following:
ORDER i. The Revision petition is hereby allowed.
ii. The impugned order dated 01.02.2016 is hereby set aside.
iii. I.A. No.I filed by the petitioner under Section 5 of the Limitation Act in Mis. Petition No.660/2013 is hereby stands allowed.
iv. Consequently, the said Miscellaneous petition in Mis. No.660/2013 also stands allowed.
v. The suit in O.S. No.4413/2006 stands restored to file.
vi. The Court below is directed to take up the suit and dispose of the same on merits after issuing Court notice to the defendants.
Petitioner undertakes to appear before the Court below on 16.12.2019 without waiting for further notice from the Court below.
Ordered accordingly. No costs.
Sd/- JUDGE MBM