IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CRP NO.60 OF 2017 (SC) BETWEEN:
Smt. Saheen Taj Aged about 50 years, W/o Late Akram Khan, R/at No.11, 3rd Street, Armstrong Road, Bharathi Nagar, Bengaluru-560 001 And Shop bearing No.18, Premises No.88, M/s Rao Bahadur Gubbi, Thotadappa Charitable Trust Building Near City Railway Station Bengaluru-560 023. …Petitioner (By Sri K.K.Vasanth, Advocate) AND:
1. M/s Rao Bahadur Gubbi, Thotadappa Charitable Trust, No.88, Gubbi, Thotadappa Road, Near City Railway Station Bengaluru-560 023 Rep. by its Secretary Sri K.N.Jayalingappa 2. Smt. Shameem Taj @ Raheema bi, Aged about 36 years, W/o Late Akram Khan, Shop bearing No.18, Premises No.88, RBD Gubbi, Thotadappa Charities Building, Near City Railway Station Bengaluru-560 023. …Respondents (By Sri T.Basavaraj, Advocate for R1, Notice to R2 dispensed v/o/d 21/4/17.) **** This Civil Revision Petition is filed under Section 18 of Karnataka Small Cause Act 1964, against the Judgment and Decree dated: 02.02.2016 passed in SC No.874/2014 on the file of the Small Causes (SCCH-23) at Bengaluru partly decreeing the suit for Ejectment.
This Civil Revision Petition coming on for Orders this day, the Court made the following:
ORDER This application is filed under Section 5 of Limitation Act for condonation of delay of 285 days in filing the Civil Revision Petition.
2. In support of the application, the petitioner has filed an affidavit wherein it is stated that the petitioner had entered appearance in S.C.No.874/2014, the respondent herein prevailed upon her to pay the additional advance amount and enhance monthly rent so as to withdraw the case and renew the lease. In the meanwhile, she was suffering from illness. Her daughter was also under treatment from March 2014 in St. John’s Medical College Hospital, Bengaluru and she died on 08.08.2015.
3. The petitioner had taken the words of respondent No.1 into confidence and believed that the case would be withdrawn and the lease will be renewed. Therefore, when the petitioner approached respondent No.1 in the last week of March 2016, respondent No.1 demanded to pay all the arrears of rent right from 01.05.2014 till date at the rate of Rs.15,000/- per month. On 28.3.2016, the petitioner submitted a letter along with demand draft dated 30.3.2016 for Rs.5,00,000/- (Rupees Five lakhs only). Respondent No.1 has acknowledged the receipt of petitioner’s letter dated 28.3.2016 and also demand draft dated 30.3.2016. But to her surprise, respondent No.1 has filed an Execution case No.1490/2016 to execute the judgment and decree in S.C.No.874/2014.
4. Respondent No.1 ought to have filed the suit for ejectment before the City Civil Court as the subject matter of the suit exceeds Rs.1,00,000/- (Rupees One lakh only). As such, there was no occasion for the petitioner to suspect the assurance of respondent No.1 regarding the renewal of lease. The reasons assigned for the delay in filing the Revision Petition is bonafide.
5. Learned counsel for respondent No.1 has filed objections contending that there is an inordinate delay of 285 days. Even though the petitioner has appeared in S.C.No.874/2014 through advocate, she did not file the written statement. The allegations regarding the fresh lease from 01.05.2014 are false and baseless.
6. There is no suppression of material facts whatsoever. Petitioner had agreed to pay an enhanced rent of Rs.15,000/- but she had never approached regarding renewal of lease after the expiry of lease period from 01.05.2014.
7. The petitioner being a chronic defaulter, approached respondent No.1 on 28.3.2016 along with D.D. for Rs.5,00,000/- towards payment of damages out of the arrears payable of Rs.13,10,353/-. There are no valid grounds for condonation of delay.
8. Learned counsel for the petitioner strenuously contended that on the assurance by the respondent-Trust regarding renewal of lease by enhancing of rent, the petitioner did not appear for the Court proceedings in S.C.No.874/2014. She has given a letter dated 28.3.2016 along with D.D for Rs.5,00,000/- which is accepted by the respondent-Trust without any demur. But the respondent No.1 after accepting the amount has deliberately filed the Execution Petition by misleading the petitioner. On account of fraud being played by the respondent, the petitioner is put to irreparable loss. If the delay is not condoned, the petitioner will be deprived of an opportunity to defend case.
9. Per contra, the learned counsel for the respondent submits that there are no valid reasons for condonation of delay. In the affidavit, there is no proper explanation as to why she did not appear before the trial Court for conducting the proceedings. There is no justification for the delay in filing the petition. In support of his contention, he has relied upon two decisions in the case of (1) D. Gopinathan Pillai vs. State of Kerala & Anr. Reported in AIR 2007 SC 2624 and (2) in the case of Smt. Kanthamma vs. The Special Land Acquisition Officer, Karnataka Industrial Development Board (KIADB), Bangalore and Another reported in 2003(2) KAR.L.J.7 (DB).
10. In view of rival contentions, the question arises is, whether there is valid ground for condoning the delay?
11. Generally there should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalize injustice but are obliged to remove injustice. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
12. The first contention is that the petitioner did not attend the court proceedings on the belief that respondent- Trust will withdraw the case. Even after passing of the judgment, the petitioner had gone to respondent-Trust and gave a letter dated 28.03.2016 for renewal of the lease along with DD of Rs. 5,00,000/- which was accepted by respondent-Trust. The other contention stated for the delay is that her daughter had expired and she was suffering from ill-health.
13. As could be seen from the records, S.C.No.874/2014 was filed by the respondent No.1/plaintiff on 30.07.2014. The petitioner has appeared through her counsel, but no written statement was filed and she has not even attended the further proceedings. The evidence commenced on 19.03.2015 thereafter judgment was passed on 02.02.2016. According to the petitioner, her daughter died on 08.08.2015. After four months, the judgment was passed on 02.02.2016. It is submitted that the petitioner was suffering from ill-health but there is no cogent documentary evidence to substantiate the said contention.
14. In a decision reported in the case of D. Gopinathan Pillai vs. State of Kerala & Anr. Reported in AIR 2007 SC 2624 the Hon’ble Apex Court has held as under:-
“Arbitration Act (10 of 1940), S.30 Award- Setting aside of- Inordinate delay- No satisfactory explanation given – condonation only on sympathetic grounds- Not proper.”
15. In another decision reported in the case of Smt. Kanthamma vs. The Special Land Acquisition Officer, Karnataka Industrial Development Board (KIADB), Bangalore and Another reported in 2003(2) KAR.L.J.7 (DB) this Court has held as under:
“Limitation Act, 1963, Section 5 and Article 117 of Schedule – Karnataka High Court Act, 1961, Section 4 – Writ appeal – Delay in filing of – Condonation – Appeal against order dated 28.5.2001 in writ petition filed on 23.8.2001 after expiry of limitation period of 30 days from date of order appealed against – Delay is attributed to delay in obtaining certified copy of order in writ petition, but even after obtaining certified copy on 02.07.2001, appeal was not filed immediately, but only on 23.8.2001 – Delay, held, cannot be condoned for want of sufficient cause being shown for not preferring appeal within period of limitation.”
16. In view of the principle laid down in the aforesaid decisions, the party who has approached the Court for condonation of delay shall have to satisfy the court by assigning sufficient and reasonable cause. No doubt, the Courts are generally liberal in condoning the delay if there are valid grounds. But, in the instant case, the only reason assigned is regarding the death of her daughter which has taken place on 08.08.2015. Thereafter, the judgment was passed on 02.02.2016. The other reasons regarding ill-health are not supported by any medical records.
17. It is also submitted that respondent No.1 has committed fraud, as such, he was prevented from attending the court proceedings but no material forthcoming to prove the fraudulent acts said to have been committed by respondent.
18. For the foregoing reasons, there are no valid grounds to condone the delay. Accordingly, I.A 1/2017 filed under section 5 of the Limitation Act seeking condonation of delay is dismissed. Consequently, the Civil Revision Petition also stands dismissed.
SSD CT-HR Sd/- JUDGE