IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.3470-3471 OF 2019(GM – CPC) BETWEEN :
Sri. M R Prasanna, S/o Late Rangaswamy, Aged about 55 years Residing at No.604, Satya Greens, Kodigehalli Main Road, Thindlu, Bengaluru-560097 Rept By His Power Of Attorney Holder Sri T R Ravi K Kkumar ... Petitioner (By Sri. V Anand, Advocate ) AND:
Sri. Chandpasha S/o Late Syed Adbul Wahab @ Pyaru Sab Since Dead By His Lrs.
1. Shahanaz Begum Aged About 50 Years W/o Late Chandpasha 2. Syed Saquib Pasha Aged about 34 years. S/o Late Chandpasha 3. Shabreen Sulthana D/o Late Chandpasha Aged about 34 years 4. Syed Abdul Wahab @ Syed Raqhib Pasha S/o Late Chandpasha Aged about 29 years 5. Harshadulla S/o Late Syed Abdul Wahab @ Pyaru Sab Aged about 46 years Petitioners No.1 to 5 are R/at Masidi Street Devanahalli Town Bengaluru Rural District-562110 6. S A Abdul Rawoof Aged about 70 years S/o Late Abdul Salam R/at Kalammagudi Temple Street Devanahalli Town Bengaluru Rural District-562110 7. Sheik Obeddulla Sharif S/o Abdul Jabbar Aged about 49 years R/at Kolar Road Vijayapura Town Devanahalli Taluk Bengaluru Rural District-562135 8. M Ramakrishnappa Aged about 66 years S/o Late Muniyappa R/A Thindlu Village Sarjapura Hobli Anekal Tlauk Bengaluru District-562125 Presently R/A No.3 2nd Floor, 6th Cross 1st Main Road Sampangiram Nagar Bengaluru-560027 9. T M Srinivasaiah Aged about 62 years S/o Late Muniyappa R/at Thindlu Village Sarjapura Hobli Anekal Taluk Bengaluru District-562125 Presently residing at No.68 1st Floor, 7th Cross 1 st Main Road Sampangiram Nagar Bengaluru-560027 ... Respondents (By Sri K Murthy, Adv., for C/R1 To R5) Notice to Respts.No.6 to 9 is dispensed with Vide order dated 24.4.2019.
These writ petitions are filed under Articles 227 of the Constitution of India praying to set aside the impugned order dated 04.12.2018 on I.A.No.1/2018 and I.A. No.2/2018 passed in R.A. No.15021/2018 on the file of the V Addl. District and Session Judge at Devanahalli, Bengaluru rural and thereby set aside the order at annexure-H and thereby restore the Regular Appeal 15021/2018 to be adjudication on merit.
These Petitions coming on for Orders, this day, the Court made the following:
O R D E R These writ petitions are filed by the petitioner, who is a bonafide purchaser of the suit schedule property under a Sale Deed dated 25.09.2007 is before this Court against the order on I.A.No.1/18 and I.A.No.2/18, dated 04.12.2018 in R.A.No.15021/2018, passed by the V Addl. District & Sessions Judge, Devanahalli, Bengaluru Rural District, Bengaluru, rejecting the applications filed by the petitioner under Order 41 Rule(1), Rule 33 r/w Section 96 of Code of Civil Procedure. and under Section 5 of the Limitation Act r/w Section 151 of Code of Civil Procedure respectively.
2. Respondents No.1 to 5, who are the plaintiff before the trial court filed O.S.No.591/2006 for declaration of title, possession and enjoyment and permanent injunction in respect of the suit schedule property against defendants No.1 to 4. The present petitioner is the purchaser of the property in question from defendants No.3 and 4. After contest the trial court by judgment and decree dated 6.2.2015 decreed the suit as prayed for. The vendors of the petitioner have not filed any appeal and they have placed exparte. After coming to know the decree, the present petitioner filed two applications; one for permission, as there was delay in filing the appeal and the other application for condonation of delay. The lower appellate court after considering the application for condonation of delay, rejected both applications i.e., I.A.No.1./18 and 2/18 mainly on the ground that the petitioner has not explained the delay of 315 days in filing the application. Hence, the present writ petitions are filed.
3. I have heard learned counsel for the parties to the lis.
4. Sri. V Anand, learned counsel for the petitioner contended that the petitioner, is the purchaser of the suit schedule property in question on 25.9.2007 from defendants No.3 and 4. Defendants Nos. 3 and 4 never disclosed the pendency of the proceedings between the plaintiffs and others and he is the bonafide purchaser for valuable consideration. The petitioner came to know of the decree of the suit only when, the defendants filed written statement in O.S.No.116/2016 on 4.8.2017 and after collecting the certified copy of the decree, plaint and other documents, he approached an advocate and filed applications. On account of the bonafide reasons there was delay of 315 days in filing the appeal and hence, he filed an application for permission. Both the applications were opposed by the respondents herein, who are decree holders by filing objections. The trial court without considering the rights of the parties, voluntarily proceed to reject the application for condonation of delay and also application filed under Section 5 of the Limitation Act, for permission, which is erroneous and contrary to the material placed on record.
5. He would further contended that since rights of the parties are involved in respect of the property, the lower Appellate Court ought not to have rejected the applications as the petitioner was not a party and he was not aware of the proceedings pending between the parties and also the decree passed by the trial court. Therefore, he has sought to allow the writ petitions.
6. Per contra, Sri. K Murthy, learned counsel for respondents No.1 to 5 sought to justify the impugned order and contended that there is delay of 315 days in filing the appeal. The present petitioner, who is appellant before the lower Appellate Court has not properly explained the delay, therefore, the Appellate court is justified in rejecting the application for condonation of delay and consequently, the application for permission is sought to dismiss the writ petitions.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the present respondents No.1 to 4 filed suit for declaration and permanent injunction against the defendants in O.S.No.591/2006. It is also not in dispute that during the pendecny of the proceedings before the trial court, defendants No. 3 and 4 alienated the suit property in favour of the present petitioner under a registered Sale Deed dated 29.5.2007. It is the specific case of the petitioner that, his vendors have not disclosed the pendency of the proceedings, though the sale deed is hit by the provisions of Section 52 of the Transfer of Property Act. The fact remains that the vendor did not disclose the pendency of the suit , therefore he claims that he is the bonafide purchaser and he came to know the decree passed by the trial court only on 4.8.2017. Thereafter he obtained the certified copies of the decree and other documents and filed applications for permission and condonation of delay. The lower appellate Court ought to have considered the application liberally in view of the fact that the petitioner is claiming ownership under a registered Sale Deed dated 25.9.2007 from defendants No.3 and 4, instead dismissed the applications on technicality. The delay is only 315 days. The lower Appellate Court ought to have imposed some costs for codoning the delay, since the rights of the parties are involved is in respect of the immovable property. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by restoring to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
8. Admittedly, in the present case, it is the specific case of the petitioners that he is not a party to the suit and he is not aware of the decree till the present defendants files written statement in the subsequent suit in O.S. No.116/2016 on 4.1.2017 and he explained the delay of 315 days in filing the appeal. The courts are meant for to do justice and substantial justice deserves to be preferred and cannot deprive on technicalities. In view of the above, the impugned order passed by the Appellate court cannot be sustained.
9. For the reasons stated above, writ petitions are allowed.
The impugned order passed by the Lower Appellate court on I.A.No.1/18 and I.A.No.2/18, dated 04.12.2018 in R.A.No.15021/2018, passed by the V Addl. District & Sessions Judge, Devanahalli, Bengaluru Rural District, Bengaluru, are hereby quashed. I.A.No.2 filed by the petitioner under Section 5 of the Limitation Act and delay of 315 days in filing the application is condoned, accordingly I.A.s are allowed subject to payment of costs of Rs.5000/- and the Appellate court is directed to consider the appeal on merits in accordance with law.
Psg* Sd/- JUDGE