IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.51008 OF 2019 (GM-CPC) BETWEEN:
SRI. NAGARAJ S/O LATE GURUMURTHY BOVI, AGED 57 YEARS, R/AT BANDE PALYA, NEAR GARUVEBHAVIPALYA, BEGUR HOBLI, BENGALURU SOUTH TALUK, HOSUR ROAD, BENGALRU – 560 068.
... PETITIONER (BY SRI. M.B.CHANDRACHOODA, ADVOCATE) AND:
SRI. CHETHAN BHARATH, S/O A.S.VISHNU BHARATH, AGED 36 YEARS, R/AT NO 450, 7TH MAIN, 4 TH BLOCK, JAYANAGAR, BENGALURU – 560 011.
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.04.2019 PASSED IN MISC.NO.44/2015 ON THE FILE OF 39TH ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, VIDE ANNEXURE-J; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the defendant in an injunctive suit in O.S.No.6122/2013 is knocking at the doors of writ court being aggrieved by the order dated 26.04.2019, whereby the case in Misc. No.44/2015 having been favoured, the order dismissing the suit having been set aside, the said suit is restored to the Board for consideration afresh.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter because:
(a) the respondent-plaintiff has made out a case before the Court below for restoration of the suit by establishing the stand taken by him that on 28.11.2014 his absence and his counsel’s absence was because of wrong date being written in their diary i.e., 29.10.2014. The plausible explanation offered by the respondent-plaintiff has been accepted by the Court below in its discretion; therefore the discretionary orders of the kind do not merit deeper examination at the hands of writ court exercising limited supervisory jurisdiction under Article 227 of the Constitution of India vide decision of the Apex Court in SADHANA LODH vs. NATIONAL INSURANCE COMPANY, AIR 2003 (3) SCC 524; and, (b) the contention of the petitioner that the C.Misc. was filed with delay and no application for condonation of delay was accompanying the same and therefore the one filed later could not have been entertained by the court below, is legally untenable; it is a settled legal position that a proceeding belatedly instituted cannot be dismissed straightaway without giving an opportunity for seeking condonation thereof, if law provides for condonation of delay vide STATE OF KARNATAKA VS NAGAPPA, ILR 1985(3) Kant 2374 DB.
In the above circumstances the writ petition being devoid of merits, is rejected in limine.
Sd/- JUDGE DS