IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS. 54228-229 OF 2018 (GM-CPC) BETWEEN:
SRI. M NINGEGOWDA, S/O SRI. MARIBETTEGOWDA, AGED ABOUT 58 YEARS, WORKING AS MANAGER, KEMPEGOWDA INSTITUTE OF MANAGEMENT, STUDIES AND RESEARCH (KIMSR), SRIGANDADAKAVAL, BANGALORE - 560 091. R/AT NO.3/191, 1ST CROSS, VIDYANAGAR, KURUBARAHALLI MAIN ROAD, BANGALORE – 560 086.
… PETITIONER (BY SRI. M P SRIKANTH, FOR SRI. M S PARTHASARATHI, ADVOCATES) AND:
1. VOKKALIGARA SANGHA, K R ROAD, V V PURAM, BANGALORE – 560 004.
BY ITS GERNERAL SECRETARY.
2. THE PRINCIPAL, KEMPEGOWDA INSTITUTE OF MANAGEMENT, STUDIES AND RESEARCH(KIMSR), SRIGANDADAKAVAL, BANGALORE – 560 091.
… RESPONDENTS (BY SRI. C N KESHAVA MURTHY, ADVOCATE R1 & R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 19.11.2018 PASSED I.A.NO.2 AND 3 IN MISCELLANEOUS PETITION NO. 464/2017 PASSED BY THE XXIX ADDL. CITY CIVIL AND SESSIONS JUDGE BANGALORE VIDE ANNEX-L.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being an applicant in Misc. Petition No. 464/2017 and the plaintiff in O.S.No.5627/2016 is invoking the writ jurisdiction of this Court for assailing the order dated 19.11.2018 whereby his application in IA Nos.
2 & 3 for recalling of the order posting the said misc. petition for judgment and for condonation of delay of 11 days brooked in filing the Misc. Petition have been dismissed by the learned XIXXX Additional City Civil Judge, Bengaluru. A copy of the order is at Annexure-L. After service of notice, the respondents having entered appearance through their counsel, resist the writ petitions.
3. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner for the following reasons:
(a) petitioner’s suit for a decree of declaration of correct date of birth was dismissed for non-prosecution on 20.04.2017; the subject Misc. Petition 464/2017 was filed against the said dismissal on 31.05.2017 and thus, arithmetically a short delay of 11 days was brooked in filing the same; this delay is too short to be little;
(b) the petitioner having discovered that the Misc.
Petition with delay only when the matter was posted for final judgment therefrom; he filed the subject applications on 14.09.2018 seeking recall of the order posting the case for judgment for facilitating consideration of his another application for condonation of delay of 11 days; a just cause of the citizen cannot be defeated on a technical ground is the repeated warning of the Apex Court;
(c) the contention of the respondents that there was a delay of 115 days in filing the application is ridiculous to say the least; the application is for condonation of delay in filing the Misc, Petition; the Division Bench of this Court in STATE OF KARNATAKA vs. NAGAPPA, ILR 1985 (3) KAR 2374 has held that a time barred appeal cannot be dismissed without giving an opportunity to the litigant to seek condonation of delay; that being the position, the Court below could not have rejected the subject applications; instead it ought to have allowed the applications on costs.
(d) the justice of the case requires that the Misc.
Petition should not run the risk of being dismissed on the sole ground of delay; whether the said petition is meritorious or not is for the Court below to judge after hearing both the stake holders.
In the above circumstances, the writ petitions are allowed; the impugned orders are set at naught; the petitioners subject two applications in IA Nos. 2 & 3 hving been favoured, the delay is condoned; Court below shall hear the Misc. Petition on merits.
Petitioner shall pay a cost of Rs.2,500/- to the first respondent – Sangha within a period of one month from this day, failing which the order now quashed shall stand resurrected.
It is needless to mention that the Misc. Petition shall be heard and disposed off expeditiously.
All contentions of the parties are kept open.
Sd/- JUDGE Bsv