IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.491/2019 BETWEEN:
SRI.S.P. MANJEGOWDA S/O SRI PAPEGOWDA AGED ABOUT 54 YEARS R/AT SHRAVANABELAGOLA VILLAGE AND HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573135.
...PETITIONER (BY SRI. NITISH K.N., ADV. FOR SRI. K V NARASIMHAN, ADV.) AND:
1. SRI. RAMAKRISHNA S/O LATE RAMABHOVI AGED ABOUT 76 YEARS R/AT NO.503, SHANTHINAGARA K R ROAD, 14TH CROSS BSK II STAGE BENGALURU-560085.
2. THE PRESIDENT CREDIT CO-OPERATIVE SOCIETY (VSSM), BEKKA VILLAGE SHRAVANABELAGOLA VILLAGE AND HOBLI-573135 CHANNARAYAPATNA TALUK HASSAN DISTRICT.
3. THE SECRETARY CREDIT CO-OPERATIVE SOCIETY, (VSSM) BEKKA VILLAGE SHRAVANABELAGOLA VILLAGE AND HOBLI-573135 CHANNARAYAPATNA TALUK HASSAN DISTRICT-573135 DEPUTY COMMISSIONER HASSAN DISTRICT, HASSAN.
4. THE ASSISTANT REGISTRAR OF CO- OPERATIVE SOCIETIES HASSAN SUB-DIVISION HASSAN-573201.
…RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 02.11.2019 PASSED ON IA NO.1 IN RA NO.85/2017 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT AT CHANNARAYAPATNA ALLOWING THE IA NO.1 UNDER SECTION 5 OF LIMITATION ACT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition under Section 115 of the Code of Civil Procedure, 1908 is against the order dated 02.11.2019 passed on I.A.No.1 in R.A.No.85/2017 on the file of the IV Additional District and Sessions Judge, Hassan District at Channarayapatna.
2. Petitioner is the defendant and respondent No.1 is the plaintiff in O.S.No.147/2010 on the file of the Principal Civil Judge and JMFC, Channarayapatna. The parties to this revision petition would be referred to as they stand in the said suit.
3. The plaintiff filed the suit for declaration of title and permanent injunction against the first defendant. The said suit, after contest, came to be dismissed by judgment and decree dated 13.08.2014. It is the case of the defendant that the plaintiff filed Regular Appeal on 04.04.2016 and there is delay of 570 days in filing the appeal. Along with the appeal, the plaintiff also filed an application I.A.No.1 under Section 5 of the Limitation Act for condonation of delay in filing the appeal. As the defendant contested the said application, the Appellate Court, after holding enquiry on the application filed under Section 5 of the Limitation Act, under the impugned order allowed I.A.No.1 and condoned the delay on cost of Rs.5,000/-. The defendant, aggrieved by the said order is before this Court in this revision petition praying to set aside the impugned order and to reject I.A.No.1.
4. Heard the learned counsel for the petitioner and perused the material on record.
5. Learned counsel for the petitioner submits that the plaintiff filed an appeal against the judgment and decree dated 13.08.2014 in O.S.No.147/2010 belatedly on 04.04.2016. I.A.No.1 is filed to condone the delay of 570 days in filing the appeal. Learned counsel submits that the plaintiff in his affidavit for condonation of delay stated that he was suffering from Arthritis and shifted his place of residence from Channarayapatna to Bangalore during August 2014, as such, he could not immediately contact his Advocate to know the result of the suit. The First Appellate Court could not have condoned the delay in the absence of acceptable reasons. Further, the learned counsel would submit that the plaintiff had instituted PTCL proceedings against the defendant and he had participated in that proceedings, which falsifies the ground taken in I.A.No.1 for conondation of delay. Thus, he prays for allowing the revision petition.
6. The defendant is in revision under Section 115 of CPC against the order allowing I.A.No.1 filed for condonation of delay of 570 days in filing the Regular Appeal. The Hon'ble Apex Court in a case reported in 1998(7) SCC 123 in the case of N.BALAKRISHNAN VS.
M.KRISHNAMURTHY has held that in revisional jurisdiction, normally the Court should not interfere with the order by which, the delay is condoned. Relevant portion of the order at paragraphs 9 and 10 reads as follows:
9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay.. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
7. The plaintiff filed the appeal under Section 96 of CPC against the judgment and decree dated 13.08.2014 in O.S.No.147/2010. There was 570 days delay in filing the appeal. Hence, he had filed the application I.A.No.1 under Section 5 of the Limitation Act for condonation of delay. He has assigned the reason that he was suffering from Arthritis and that he has shifted his residence during August 2014, from Channarayapatna to Bangalore, where his son was working. The plaintiff marked the document Ex.P1-medical certificate to substantiate his contention that he was suffering from acute Arthritis and he could not move around freely. He had also produced Electric Bills, Water Bills and Cooking Gas bills to substantiate that he is residing at Bangalore from August 2014. Where the property rights with regard to immovable properties are involved, normally the rights of the parties shall be decided on merits. The First Appellate Court has rightly condoned the delay. In this revisional jurisdiction, I do not find any good ground to interfere with the impugned order, I do not find any merit in the petition. Accordingly, the revision petition is rejected.
Sd/- JUDGE mpk/-* CT:bms