IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.32504/2015 (GM-CPC) Between:
Sri Sannathammaiah, S/o Late Basappa @ Basavaiah, Aged about 69 years, Residing at Mudalakoppalu Village, Halebeedu Post, Bilekere Hobli, Hunsur Taluk, Mysore District – 571 103. … Petitioner (By Sri N. Nanjunda Swamy, Advocate) And:
Sri Sheshegowda, S/o Late Muddegowda, Aged about 61 years, R/at Devarahalli Village, Bilikere Hobli, Hunsur Taluk, Mysore District – 571 103. … Respondent (By Sri B.S. Nagaraj, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside/quash the order dated 31.03.2015 passed on I.A., filed under Section 5 of Limitation Act in M.A. No.62/2014, by the VIII Additional District and Session Court, Mysore (Sitting at Hunsur) as per Annexure-H and dismiss the above and application vide Annexure-E and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following :
ORDER The petitioner has challenged the order passed by the First Appellate Court whereby the application filed under Section 5 of the Limitation Act seeking for condonation of delay has been allowed.
2. It is the case of the petitioner that an order was passed on the interlocutory application filed under Order 39 Rules 1 and 2 CPC on 05.12.2013 in O.S.No.89/2011. The application was disposed off on 05.12.2013. The Miscellaneous Appeal was filed after delay of unreasonable period of 166 days. It is the contention of the petitioner that the reasons mentioned in the affidavit filed in support of the application that are disclosed are vague allegations stating that the date of hearing was not mentioned in the ‘A’ Diary.
3. The learned counsel for petitioner has vehemently argued that the impugned order has been passed without assigning sufficient reasons and has not enumerated the material stated to have been perused by it referred to in the order while allowing the application. The copy of ‘A’ Diary is produced and the counsel for petitioner submits that necessary entries are found.
4. The learned counsel for respondent on the other hand submits that entries are not in order and there is possibility that entries have been subsequently made and the ‘A’ Diary has been tampered with.
5. Heard both sides and perused the records.
6. The order passed by the Appellate Authority is in exercise of its jurisdiction and the authority has been vested with some discretion. It is mentioned in the order that records have been produced. The objections raised by the learned counsel for petitioner that records produced cannot be accepted. No grounds are made out to subject the impugned order to judicial scrutiny in exercise of jurisdiction under Article 227 of the Constitution of India.
7. As the order has been passed in exercise of discretion and mere allowing of the application under Section 5 of the Limitation Act does not take away any substantive right of the petitioner insofar as the proceedings on its merits is still to be considered in M.A.No.62/2014.
8. I find no reasons to interfere with the order of the First Appellate Court. Accordingly, the petition is rejected.
Sd/- JUDGE Np/-