IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.19156 OF 2014 (GM-FC) BETWEEN:
Sri K.V. Nanjundaswamy S/o Venkatappa Urf Venkataiah Aged 49 years R/o Gayathri Extension Channarayapatna Hassan District, Kasaba Hobli Pandavapura Taluk. … Petitioner (By Smt. Bharathi.M., Advocate for Sri Venkatesh R. Bhagat, Advocate) AND:
Smt. S.G. Mahadevi Urf S.G. Mahadevamma W/o K.V. Nanjundaswamy Aged 35 years R/o Sanaba Village Chinakurali Hobli Pandavapura Taluk Mandya District -571 434. … Respondent (By Sri. M. Narayana Reddy, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for the records pertaining to the impugned order dated 06.11.2013 on I.A.No.1 in Misc. 63/2009 rejecting the said IA filed under Section 5 of the Limitation Act passed by the Senior Civil Judge and JMFC, Pandavapura vide Annexure-A and to quash the same issuing writ of certiorari or any other writ or directions.
This Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:-
ORDER Smt.Bharathi.M, learned counsel for Sri.Venkatesh R.Bhagat, learned counsel for the petitioner.
None for the respondent.
2. The petition is admitted for hearing and the same is heard finally.
3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 06.11.2013 passed by the Family Court by which application filed by the petitioner under Section 5 of the Limitation Act, 1963 along with an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Cod’ for short) has been dismissed.
4. Facts stated are that the respondent had filed a petition under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage. Admittedly, in the aforesaid proceeding, the petitioner who is a First Division Assistant in Judicial Department was served with the summons of the proceedings. However, despite service of summons of the proceeding, the petitioner did not appear in the aforesaid proceeding on the ground that the negotiations were going on with the respondent for compromise. Eventually, an exparte decree was passed on 27.08.2005, by which the marriage between petitioner and respondent was dissolved. The petitioner filed an application for setting aside the exparte Judgment and Decree along with an application for condonation of delay on 06.01.2011. The aforesaid application has been rejected by the Family Court by the impugned order dated 06.11.2013. In the aforesaid factual background, the petitioner has approached this Court.
5. I have heard the learned counsel for the petitioner at length.
6. On perusal of the record, it is evident that the petitioner was admittedly served with the notice of the petition under Section 13 of the Hindu Marriage Act, 1955. However, despite the pendency of the proceeding, an exparte decree was passed on 27.08.2005. Thereafter, the petitioner filed an application under Order IX Rule 13 of the Code read with Section 5 of the Limitation Act, 1963 on 06.01.2011. The Family Court, by impugned order held that no reasons worthy to him have been assigned by the petitioner as to why the petitioner has filed the application under Order IX Rule 13 of Code after a delay of more than three years and four months. It has further been held by the Family Court that there has been negligence on the part of the petitioner though he is an official of the Judicial Department. In the absence of any explanation for not filing the application within the prescribed period of limitation, the Family Court has dismissed the application for condonation of delay.
7. Undoubtedly, the judicial discretion to deal with the prayer for condonation of delay has to be exercised liberally. However, the fact remains that a delinquent is required to offer an explanation with regard to the delay in approaching the Court. In the instant case, no reasons worthy to him to have been assigned by the petitioner for filing the application under Order IX Rule 13 of the Code after an inordinate delay of more than three years and four months.
8. The order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
9. In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution. In the result, I do not find any merit in the writ petition.
Writ Petition fails and is hereby dismissed.
Sd/- JUDGE BNV