IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 PRESENT THE HON’BLE MR. JUSTICE A.S.BOPANNA AND THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY REVIEW PETITION NO.807/2012 IN R.F.A. NO.552/2003 BETWEEN :
1. Smt.Lakshmamma, W/o.Late Narayana Swamy, Aged about 70 years, 2. Chaitanya, S/o.Late Narayana Swamy, Aged about 48 years, 3. Badri Narayana, S/o.Late Narayana Swamy, Aged about 41 years, Residing at No.433, Bramhaputra nadi Road, Srinagar, Bangalore – 560 050. ...PETITIONERS (By Sri. Krishna Moorthy D., Adv. & Sri.Venkatesh Gowda P.M., Adv.) AND :
1. Belimutta Swamygalu, Sri Sri Ni. Pra. Charamurthy, Shirudra Swamygalu, Aged 64 years, No.5, Belimutt, Belimutt Road, Cottonpet, Bangalore – 560 053.
2. Jaganatha, S/o.Late Narayana Swamy, Aged about 46 years, Residing at Door No.433, Bramhaputra nadi Road, Srinagar, Bangalore – 560 050.
3. Govindaraju, S/o.late Narayana Swamy, Aged about 46 years, Residing at Door No.433, Bramhaputra nadi Road, Srinagar, Bangalore – 560 050. …RESPONDENTS (By Sri.Anil Kumar S., Adv.
SriM.Sivappa, Adv for R1) . . . .
This review petition is filed under Order 47 Rule 1 of CPC praying for review of the order dated 18.11.2011 passed in R.F.A. No.552/2003, on the file of this Court.
This review petition coming on for orders, this day, A.S.Bopanna J., made the following:
O R D E R The instant review petition is filed by the respondents No.1, 2 & 5 to the appeal in R.F.A. No.552/2003.
2. Since there is delay of 208 days in filing the appeal, the application in I.A.No.1/12 is filed seeking condonation of delay. The respondent No.1 has filed the objection statement to the application.
3. The only ground urged in the application to seek condonation of delay of 208 days is that the review petitioners were not served with the Court notice in the appeal proceedings. Respondent No.1 through his objections statement has disputed the contention as put forth in that regard and has contended that all the parties who were respondents in the appeal being L.Rs. of the original respondent were residing in the same address and one of the respondents to the appeal namely Sri.Jagannatha had appeared in the proceedings. In that light, it is contended that the reason as put forth is not justified even for the purpose of condonation of delay moreso to either entertain the review petition and hence sought for dismissal of the application seeking condonation of delay and consequently, the review petition as well.
4. Though rival contentions have been addressed by the learned counsel, in order to satisfy ourselves with regard to the reasons as put forth by the review petitioners regarding non-service of notice, we have secured the records maintained in the appeal proceedings and in that regard we have perused the ‘B’ file wherein the documents relating to service is available.
5. It is seen that at the first instance the notice issued has been returned with the postal endorsement as ‘Addressee left’. This Court in that view had permitted the appellant to take out fresh steps for issue of notice on the review petitioners who were to be brought on record as L.Rs. of the original respondent to the appeal. Subsequently, steps have been taken for issue of notice and the notice has been served.
6. Though petitioner No.1 herein has received the notice in respect of the other petitioners, what cannot be lost sight is that even in that circumstance, respondent No.3, one of the sons had appeared and contested the case. If that be the position, when it is seen that the notice was issued at the first instance to the very address which is shown as the address of the petitioners in the present review petition, the same being returned as “addressee left” would indicate that service was evaded with malafide intention. Thereafter further steps were taken for issue of notice to the alternate address and in that manner also service has been effected and when they have not chosen to appear, the reason as put forth cannot be accepted by us.
7. That apart we have also noticed that in a proceeding of the present nature where this Court in the appeal has set- aside the judgment of the Court below and has directed execution of the sale deed, though as on the date of filing the review petition the delay was about 208 days, keeping in view the further lapse of time, the rights which have accrued to the parties cannot be lightly interfered by us in a proceeding of the present nature. In that view, we see no reasons to accept the contentions as urged to be sufficient cause for the purpose of condonation of delay.
Accordingly, I.A. No.1/2012 is dismissed. Consequently, review petition also stands dismissed.
Sd/- JUDGE Sd/- JUDGE SPS