IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.9262 OF 2015 (GM-CPC) BETWEEN:
1. LAKSHMAMMA W/O LATE RAMAIAH AGED ABOUT 53 YEARS.
2. B.R. RAVIKUMAR S/O LATE RAMAIAH AGED ABOUT 29 YEARS.
3. SMT. SARASWATHI @ SARASI D/O LATE RAMAIAH AGED ABOUT 26 YEARS.
ALL ARE RESIDING AT BOAMARANAHALLI VILLAGE MANDIGERE POST, KASABA HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT.
(By Mr. SHIVANNA A.G. ADV.) AND:
B.R. SUBRAMANY S/O RAMAIAH AGED ABOUT 43 YEARS R/AT BETTAHALLI VILLAGE NELAMANGALA TALUK BANGALORE RURAL DISTRICT REPRESENTED BY GPA HOLDER SRI B R LAKSHMAN AGED ABOUT 48 YEARS S/O SRI RAMAIAH … PETITIONERS R/AT NO.540, ‘F’ BLOCK 14TH CROSS, 14TH MAIN SAHKARANAGAR BANGALORE-560092.
(By Mr. B.J. VEERENDRA KUMAR, ADV.) - - -
… RESPONDENT This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order vide Ann-A dated 14.1.2015 made on I.A.No.1 in M.A.No.1/12 by the Court of Principal District and Session Judge, Bangalore Rural District, Bangalore and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Mr.Shivanna A.G., learned counsel for the petitioner.
Mr.B.J.Veerendra Kumar, learned counsel for the respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 14.01.2015 by which the Trial Court has allowed the application filed by the respondent under Section 5 of the Limitation Act, 1963 condoning the delay of 52 days.
4. I have heard the learned counsel for the parties at length and have perused the record. From perusal of the record, it is evident that the respondent had filed a suit, which was dismissed on 30.08.2010. Being aggrieved, the petitioner filed the Writ Petition before this Court viz., W.P.No.31562/2018, which was disposed of by a Bench of this Court by order dated 26.09.2011, by which respondent was permitted to file an appeal. Thereafter, the appeal was filed on 02.01.2012. The Trial Court has condoned the delay proceedings on the presumption that there is a delay of 52 days in filing the appeal. From perusal of the record, it is evident that the civil suit was dismissed on 10.06.2009 and the application seeking recall of the aforesaid order was dismissed on 30.08.2010. Therefore, the petitioner was required to explain the delay from 04.08.2010 till 02.01.2012. However, the aforesaid aspect of the matter has not been considered by the Trial Court and the Trial Court has condoned the delay on the presumption that the delay is of 52 days. The impugned order is therefore quashed and set aside and the Trial Court is directed to decide the application afresh in accordance with law after affording an opportunity of hearing to both the parties in the light of the observations made herein.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS