IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.989 OF 2016 (S-DIS) BETWEEN:
SHRI.LAKSHMI NARASIMHA SWAMY CHARITIES, REPRESENTED BY ITS SECRETARY FORT, BENGALURU-560002 NOW REPRESENTED BY CHAIRMAN.
... APPELLANT (BY SRI. R HEMANTH RAJ, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY EDUCATION DEPARTMENT M S BUILDING BENGALURU- 560001.
2. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS BENGALURU SOUTH KALASIPALYAM BENGALURU -560002.
3. SMT. K S SHYLAJA WIFE OF SHRI C ESHWZARAPPA RESIDING AT NO.731 2ND MAIN, MATTIKERE BENGALURU -560084.
(BY SRI.LAXMINARAYANA, AGA. FOR RESPONDENT No.1 AND 2 ... RESPONDENTS SRI K SUBBA RAO, SENIOR COUNSEL FOR SRI SATHEESH K N, ADVOCATE FOR RESPONDENT No.3) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 2249/2006 DATED 02/03/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 2.3.2016 passed by the learned Single Judge on I.A .No.1 of 2015 in W.P. No.2249 of 2006, by which the I.A. filed for recalling the order dated 25.7.2011 was dismissed, the petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of Constitution of India to set aside the judgment and award dated 17.12.2005 in MA (EAT) No.7 of 2003 passed by City Civil Court (EAT), Bengaluru. It is stated that the counsel who was appearing for the petitioner sought permission to retire from the case and this Court by order dated 11.1.2008 permitted the counsel to retire from the case. As the petitioner had not engaged any other counsel to prosecute the case, the petition was dismissed by order dated 25.7.2011 for non prosecution.
I.A. No.1 of 2015 was filed to condone the delay of 1470 days in filing the recalling application. The learned Single Judge on hearing the parties to the petition declined to condone the delay and dismissed the application for recalling. Aggrieved by the same, the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the appeal papers.
4. Learned counsel for the appellant submits that the counsel for the petitioner retired from the case in pursuance to the order dated 11.1.2008 passed in the present writ petition. It is stated that the petitioner- Charities was taken over by the Government and an Administrator was appointed by Government order dated 30.4.2003 which was recalled by order dated 7.8.2014. As the Administrator was looking after the administration of the institution, the notice issued by the previous counsel was not received by the petitioner and as such, the petitioner could not engage the counsel to prosecute the writ petition. Further, he submits that on permitting the previous counsel to retire, this Court ought to have issued notice to the petitioner. Since no notice was received either from its earlier counsel or from the Court, the petitioner could not engage the counsel. The writ petition listed on 25.7.2011 was dismissed for non prosecution. Only when the petitioner received notice in execution, the petitioner came to know that the writ petition was dismissed for non prosecution. As the petitioner was not aware of the dismissal of the writ petition for non prosecution till the execution proceedings, there was delay in filing the application. The delay in filing the application was bona fide one and the delay should be construed liberally.
In support of his contention that the delay should be construed liberally, the learned counsel for the appellant relies on the decision of the Hon’ble Supreme Court in case of ORIENTAL AROMA CHEMICAL INDUSTRIES LIMITED VS. GUJARATH INDUSTRIAL DEVELOPMENT CORPORATION AND ANOTHER reported in 2010(5) SCC 459. In support of his contention that the petitioner was entitled for notice from the Court on retirement of earlier counsel, the learned counsel relies on the decision of this Court in the case of SRI KRISHNA VENKATESH PAI VS. DEVAPPA AYYU NAIK AND OTHERS reported in 1967 (1) Mys.L.J. 236.
5. Per contra, learned counsel for the respondents submits that the delay was not properly explained and hence the learned Single Judge was right in dismissing I.A. No.1 of 2015 filed for condonation of delay in filing the recalling application. He further submits that the previous counsel for the petitioner had issued the notice of retirement and thereafter, he had filed a memo before this Court. This Court permitted the previous counsel to retire from the case. Hence, he submits that the retirement of the previous counsel for the petitioner was within the knowledge of the petitioner. He prays for dismissal of the appeal.
6. On perusal of the reasoned order passed by the learned Single Judge and the material on record including the writ petition records, we are of the view that the petitioner has not made out any ground to interfere with the order of the learned Single Judge. This Court on 11.1.2008 has passed the following order:
“ Learned counsel for the petitioner has filed this memo to permit him to retire from the case. Learned counsel has also produced the copy of the letter dated 4.12.2007 with acknowledgement for having served the same on the petitioner. Memo is allowed. Learned counsel is permitted to retire from the case. Office is directed not to print the name of the learned counsel for the petitioner.”
7. From the above order, it is clear that the previous counsel had issued the letter dated 4.12.2007 and had also produced an acknowledgement for having served the same on the petitioner. But the petitioner contends that they had not received the notice as the Administrator was managing the Charities. To consider the said contention, we have gone through the records of the writ petition and we have perused the memo and the letter dated 4.12.2007 issued by the previous counsel to the petitioner. The previous counsel had addressed the letter to the Chairman, SLN Charities, Fort, Bengaluru, which was the address furnished by the petitioner in the cause title. Therefore, the petitioner’s contention that the petitioner was not served with the notice issued by the previous counsel, is incorrect and cannot be accepted. Moreover, it is the submission of the Learned counsel for the petitioner that the Administrator was appointed in the year 2003 and the same was recalled only in the year 2014. If that is so, the petitioner-Charities could not have filed the writ petition in the year 2006, when the Administrator was managing the same.
8. From the above narration of facts, it would be clear that the petitioner had the knowledge of retirement of the previous counsel. The explanation for the delay in filing the recalling application was not explained properly and there was no sufficient cause to condone the delay.
In the decision relied on by the learned counsel for the petitioner, the Hon’ble Supreme Court, has laid down that the Courts to adopt a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. In the case on hand, the delay is 1470 days, almost more than four years, which the petitioner has failed to explain properly nor there is sufficient cause to condone the delay. More over, the previous counsel had issued letter dated 4.12.2007 and an acknowledgement for service of notice had also been produced before the Court. The learned Single Judge taking note of the letter dated 4.12.2007 held that the petitioner was well aware of the fact that his previous counsel was about to retire from the case and only after this Court satisfied that the petitioner was informed about the previous counsel’s retirement, permitted the previous counsel to retire by order dated 11.1.2008.
9. The learned counsel for the petitioner relied on the decision of this Court in Sri Krishna’s case, cited supra, to contend that the petitioner was entitled for notice from this Court on permitting the previous counsel to retire from the case. In the case relied on by the petitioner, this Court has observed that the Court cannot dismiss the appeal merely on the counsel reporting no instructions without looking into the proof of having issued notice of his intention not to proceed with the appeal. It was a case where the counsel submitted no instruction without issuing any notice, under that circumstances, this Court condoned the delay. But, in the case on hand, the previous counsel had issued the notice and had also produced an acknowledgment for having served the notice and thereafter, this Court permitted him to retire from the case. Hence, the said decision would not assist the petitioner in the facts and circumstances of the case.
10. We have considered the Judgments. Keeping in view the fact that the technicalities should not come in the way of doing substantial justice, we are of the considered view that a liberal approach requires to be taken while considering the question of delay. However liberally we may extend the liberty, the same would not save the petitioner. In view of the facts and circumstances of the case, the retirement has taken place in the manner known to law and an acknowledgement has been furnished. In spite of that there is a delay. It is for this reason that the learned Single Judge declined to condone the delay since it is deliberate. When the action of the party is deliberate and lacks bonafides, the question of applying the principle of being liberal in matters pertaining to delay cannot be accepted. In spite of extending the maximum consideration, we do not think that the facts and circumstances of the case and the conduct of the petitioner entitled him for any relief.
11. For the reasons recorded above, we are of the view that the petitioner has not made out any ground to interfere with the order of the learned Single Judge. Accordingly, this appeal is dismissed being devoid of merit.
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JUDGE JUDGE Cs/-* CT:bms