IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.10113 OF 2012 (CPC) BETWEEN:
SMT.UMMUL HABIBAN, W/O SHEIK NIZAMUDDIN, AGED ABOUT 71 YEARS, R/A CHILMI HOUSE, KOTEBAGILU, MARPADY VILLAGE, MOODBIDRI – 574227, MANGALURU TALUK SINCE DEAD BY LR’s.
1.ZUBEIDA AMIR, W/O AMIR SAHEB, AGED ABOUT 63 YEARS, R/A AMIR MANZIL QUILLA, KOTEBAGILU, MARPADY VILLAGE, MOODBIDRI – 574227, MANGALURU TALUK.
2.BALQUIS, W/O AMIRADDIN, AGED ABOUT 53 YEARS, NO.268, WEST BLOCK ROAD, NEAR PADIYAR NURSING HOME, KUNDAPUR – 576201, UDUPI DISTRICT.
3.MUKTHAR AHMED S/O SHEIK NIZAMUDDIN, AGED ABOUT 51 YEARS, PB NO.3151, JUDDAH 21471, SANDI ARABIA, KSA, PRESENTLY RESIDING AT, FLAT NO.203, VISHWAMITRA, KANKANADY BYEPASS ROAD, MANGALURU – 575002.
AMENDED VIDE COURT ORDER DATED 03.02.2014. …APPELLANTS (BY SRI.M.J.ALVA, ADVOCATE) AND:
1. SHABBIR SAHEB, S/O LATE NOORUDDIN, AGED ABOUT 51 YEARS.
2. ABIDA BI, D/O LATE NOORUDDIN, AGED ABOUT 64 YEARS.
3. KRUSHEED BI, D/O LATE NOORUDDIN, AGED ABOUT 53 YEARS, 4. HOWWA BI, D/O LATE NOORUDDIN, AGED ABOUT 49 YEARS.
5. NASEEM BI, D/O LATE NOORUDDIN, AGED ABOUT 47 YEARS.
6. JALIL SAHEB, S/O LATE NOORUDDIN, AGED ABOUT 44 YEARS.
7. KHALIL, S/O LATE NOORUDDIN, AGED ABOUT 42 YEARS.
NOS.1 TO 7 ARE RESIDING AT KOTEBAGILU, PRANTHYA VILLAGE, MOODABIDRI – 574227, MANGALURU TALUK.
8. MRS.MARIAMBI, SINCE DECEASED BY LR’s a) MAHABOOB, AGED ABOUT 59 YEARS, S/O SABJAN SAHEB.
b) SARAMBI, AGED ABOUT 54 YEARS, D/O SABJAN SAHEB.
c) SHABULAL, AGED ABOUT 54 YEARS, S/O SABJAN SAHEB.
d) IQBAL, AGED ABOUT 49 YEARS, S/O SABJAN SAHEB.
e) NOOR JAHAN, AGED ABOUT 44 YEARS, D/O SABJAN SAHEB.
f) LATEEF, AGED ABOUT 39 YEARS, S/O SABJAN SAHEB, SINCE DEAD BY LR’s (i). NAUSHEERN BANU, D/O LATE LATEEF, AGED ABOUT 19 YEARS.
(ii) TAUSHERN BANU, D/O LATE LATEEF, AGED ABOUT 18 YEARS.
BOTH RESIDING AT KOTEBAGILU, PRANTHYA VILLAGE, MOODABIDIRI – 574227, MANGALURU TALUK, DAKSHINA KANNADA.
AMENDED VIDE COURT ORDER DATED 03.02.2014 g) SHEERIN, AGED ABOUT 36 YEARS, D/O SABJAN SAHEB.
h) RIZWAN, AGED ABOUT 34 YEARS. S/O SABJAN SAHEB.
i) MOSHIN, AGED ABOUT 32 YEARS, S/O SABJAN SAHEB, NOS.8 (a) to (i) ARE RESIDING AT MANJADA MOHALLA, PRANTHYA VILLAGE, MOODABIDRI – 574227, MANGALURU TALUK.
9. MRS.FATHIMA BI, W/O ABDUL RAHIMAN SAHEB, AGED ABOUT 71 YEARS, R/A MANJADA MOHALLA, PRANTHYA VILLAGE, MOODABIDRI – 574227, MANGALURU TALUK.
10.FAIROZA BANU, D/O SAKINA BI, AGED ABOUT 65 YEARS, KHAZI HOUSE, KHAZI MOHALLA, SALMAR, KARKALA KASABA VILLAGE, KARKALA TALUK – 574104.
11.SABIR HUSSAIN, SINCE DECEASED BY LR’s a) SHANAZ BANU AGED ABOUT 47 YEARS.
b) SAYED SUHALI HUSSAIN, AGED ABOUT 27 YEARS.
c) SUMAIYA BANU, AGED ABOUT 23 YEARS.
d) SAFAT BANU, AGED ABOUT 22 YEARS.
NO.11(a) IS THE WIFE AND 11 (b) to (d) ARE THE CHILDREN OF LATE SABIR HUSSAIN AND ALL ARE RESIDING AT “KHAZI HOUSE”, KHAZI MOHALLA, SALMAR SKECT, KARKALA KASABA VILLAGE, KARKALA TALUK – 574104.
12. APHROZA BANU, D/O SAKINABI, AGED ABOUT 61 YEARS.
13. MUMTAZ HUSSAIN, D/O SAKINABI, AGED ABOUT 60 YEARS.
14. SYED BASHEED, S/O SAKINABI, AGED ABOUT 54 YEARS.
15. SYED BASHEED, S/O SAKINABI, AGED ABOUT 53 YEARS.
16. SYED RAFEEQ, S/O SAKINABI, AGED ABOUT 51 YEARS.
NOS.10 TO 16 ARE RESIDING AT “KHAZI HOUSE”, KHAZI MOHALLA, SALMAR, KARKALA KASBA VILLAGE, KARKALA TALUK – 574104.
17. ZUBEIDA AMIR W/O AMIR SAHEB, MAJOR.
18. BALQUIS, W/O AMIRUDDIN, MAJOR.
19. MUKTHAR AHMED, S/O SHEIKH NIZAMUDDIN, AGED ABOUT 51 YEARS.
RESPONDENT NO.17 TO 19 ARE TRANSPOSED AS APPELLANT NOS.1 TO 3 BEING LRs OF SOLE APPELLANT AS PER COURT ORDER DATED 03.02.2014. ...RESPONDENTS (BY SRI.CHANDRANATH ARIGA, ADV. FOR R1 TO R6 R7, R8 (A TO E) (F I AND II) RG TO RI, R9, R10, R11 (A-D) R12 TO R16 SERVED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 104 AND ORDER XLIII RULE 1(t) READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE PROCEEDINGS IN MISC.CASE NO.2/2008 FROM THE FILE OF THE LEARNED SENIOR CIVIL JUDGE AND ACJM, KARKALA AND ETC., THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed for setting aside the impugned order dated 24.09.2012 passed by the Senior Civil Judge & ACJM, Karkala, in Misc. Case No.2/2008.
02. The facts leading to this appeal are that the husband of the appellant had filed a suit before the II Addl. Civil Judge (Junior Division), Mangalore, seeking partition in respect of the properties belonging to his father’s share. It was numbered as O.S. No.238/1986. The said suit was dismissed, against which, regular appeal was filed before the Civil Judge (Senior Division), Mangalore. But the same was not numbered, as there was a delay in filing the regular appeal. Subsequently, the said unnumbered regular appeal was transferred to the Court of the Civil Judge (Senior Division), Karkala, on the ground of territorial jurisdiction. The appellant could not appear before the Court at Karkala and take steps for bringing the legal representatives of deceased respondent Nos.1 and 2 due to the reason that her counsel who was handling the matter died.
03. The appellant being a rustic muslim widow and a senior citizen was suffering from various ailments including arthritis and cardiac problems, as such, she could not attend the court proceedings in time. The petition filed by the appellant under Order 41 Rule 19 read with Order IX Rule 9 for restoration of the appeal was rejected on the ground of delay. Being aggrieved by the said order, the appellant is before this Court.
04. Reiterating the contentions made in the appeal memo, the learned counsel for the appellant would strenuously contend that the Regular Appeal filed before the Civil Judge (Senior Division), Mangalore, was not numbered as there was delay in filing the said appeal and the said unnumbered Regular Appeal was transferred to the Court of Civil Judge (Senior Division), Karkala. Meanwhile, the counsel for the appellant had expired. As such, the appellant could not keep track of the court proceedings, which resulted in dismissal of the unnumbered Regular Appeal pending before the Civil Judge (Senior Division), Karkala. On account of the health problems of the appellant, there was delay of 180 days in filing the miscellaneous petition, for restoration of the Regular Appeal. But, the learned Civil Judge (Senior Division) rejected the miscellaneous petition on the ground of limitation, observing the past conduct of the appellant and negligence of the appellant in prosecuting her earlier proceedings. It is further contended that, the court below has failed to consider the problems faced by the appellant, ultimately, the court below should have taken note of the entire gamut of facts which led to the dismissal of the unnumbered Regular Appeal and the reasons which prevented the appellant in filing the miscellaneous application before the Civil Judge (Senior Division) within a prescribed limitation period. In support of the said contention, the learned counsel for the appellant has relied on a decision in Esha Bhattacharjee vs. Managing Committee, Raghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649, wherein the Hon’ble Supreme Court has held as under:
“21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2 (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4 (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6 (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11 (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12 (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13 (xiii) The State or a public body or an entity representing a collecting cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.”
05. On perusal of the grounds urged in the affidavit and the stand putforth by the respondents herein for condonation of delay are that they were not aware of the order passed by the learned Single Judge till they received the notice of the contempt application and thereafter because of miscommunication between the counsel and the parties no steps could be taken and, eventually, an application for vacation of stay was filed and thereafter, the appeal was preferred. That apart, it has been urged that if delay is not condoned there will be great miscarriage of justice and cause of justice would be defeated if the meritorious matter like the present one is thrown at the threshold.
06. In view of the principles laid down in the aforesaid decision, generally the Courts shall have to be liberal, pragmatic, justice oriented, if sufficient cause is shown for condonation of delay and if there are no grounds to show that there was gross negligence or deliberate intention to protract the litigation, the courts need not entertain such claims.
07. In the instant case, there was a delay of more than 180 days in filing the miscellaneous application for restoration of Regular Appeal. The court below has observed about the past conduct of the parties in conducting the court proceedings namely three years time spent for taking steps and two years time for leading evidence on condonation of delay. However, the court below has failed to consider the reasons which led to the dismissal of the Regular Appeal. It is pertinent to note that, the Regular Appeal filed before the Civil Judge (Senior Division), Mangalore was unnumbered and the same was transferred to the Court of Civil Judge (Senior Division), Karkala, but it remained unnumbered. During the said period, the counsel for the appellant had also expired, all these contributory factors led to the dismissal of the appeal.
08. No precise formula can be laid down, if there are valid reasons for condonation of delay, in the interest of substantial justice, the technical consideration may not be given undue importance and called for emphasis.
09. For the foregoing reasons, I am of the considered view that there are valid grounds for setting the impugned order dated 24.09.2012 passed in Misc. Case No.2/2008 by the Senior Civil Judge & ACJM, Karkala.
10. Accordingly, I pass the following:
ORDER i. The Miscellaneous First Appeal is allowed.
ii. Order dated 24.09.2012 passed in Misc.
Case No.2/2008 by the Senior Civil Judge & ACJM, Karkala, is set aside.
iii. Unnumbered regular appeal which was transferred to the Court of Civil Judge (Senior Division), Karkala, is restored.
The parties are directed to appear before the Senior Civil Judge & ACJM, Karkala.
Sd/- JUDGE SJ