G. S. BASAVARAJ v. STATE OF KARNATAKA — 1989 DIGILAW 371 (KAR)

BALAKRISHNA, J. ( 1 ) ON behalf of the petitioner in this Civil petition, the learned Counsel Sri AJ. Sadashiva submitted his arguments and on behalf of respondents-1 and 2 the learned advocate General submitted the arguments. On behalf of respondents-1 and 2, statement of objections was filed on the basis of which contentions were raised by the learned Advocate General. ( 2 ) IN this application for condonation of delay in filing the Civil Petition for review, the petitioner is G. S. Basavaraj who is a Sub- inspector of Police, Huliyurdurga. Respon- dent-1 is the State of Karnataka, respondent-2 being the Superintendent of police, Tumkur District, Tumkur, and respondent-3 is N. Venkatachalapathy. ( 3 ) THE application for condonation of delay is in respect of a Civil Petition filed under Section 114 read with Order 47 Rule 1 of the C. P. C. seeking a review of the order passed by this Court in Writ Petition No. 15793 of 1986 dated 23-2-1988 to recall the order awarding costs against G. S. Basavaraj. ( 4 ) IN the said writ petition, N. Venkatachalapathy was the petitioner and the State of Karnataka, the Superintendent of Police and Basavaraj were respondents 1 to 3 respectively. ( 5 ) FOR the purpose of deciding the question whether the delay should be condoned, it is necessary to recount relevant facts which are material for the purpose. ( 6 ) THE writ petition was allowed on 23-2-1988 against all the three respondents therein directing the respondents to delete the name of the petitioner therein from the rowdy sheet/list of habitual offenders maintained by them forthwith on receipt of the order of the Court and respondent-3 therein was directed to pay costs of Rs. 500/- to the petitioner therein. ( 7 ) IN the application filed for condonation of delay, the petitioner has stated that there is a delay of 148 days in filing the Civil Petition. The petitioner has sworn to an affidavit the substance of which is as follows : in para 3 of the affidavit, the petitioner has stated that there is a delay of 150 days in filing the Civil Petition. The petitioner has sworn to an affidavit the substance of which is as follows : in para 3 of the affidavit, the petitioner has stated that there is a delay of 150 days in filing the Civil Petition. It is also stated that the notice of the writ petition was served on him in the month of December 1986 when he met the Deputy Superintendent of Police, madhugiri, and appraised him of the writ proceedings to take such steps for defending the petitioner herein. It is alleged that the said Deputy Superintendent of Police told him that there is no need to worry about it since no relief was sought against the petitioner personally. At the same time it is stated that since the petitioner was impleaded as respondent-3 in the said writ petition, he thought it fit to enter appearance through an Advocate in the writ proceedings; but on account of certain domestic problems and pressure of official work, he had to postpone his visit to Bangalore. Thereafter, according to the petitioner, in the month of february, 1987, an unhappy incident occurred at Pavagada resulting in public agitation and police firing followed by a judicial enquiry with the petitioner being kept under suspension along with three other police officers from 16-2-1987. It is stated that on account of the judicial enquiry and consequent suspension, the petitioner was put to both mental stress and strain in addition to financial constraints due to which it is alleged that he lost track of the writ petition and he came to know of the order passed by this Court in writ Petition No. 15793 of 1986 dated 23-2-1988 only on 26-4-1988. It is further stated that he came to know of it only when respondent-3 herein deposed before the commission of Enquiry about the order in the writ petition and award of costs (the 3rd respondent herein is N. Venkatachalapathy who was the petitioner in Writ Petition No. 15793 of 1986 ). Immediately thereafter, according to the petitioner, he applied for a certified copy of the order and on securing the same he preferred Writ Appeal No. 767 of 1988 on 28-5-1988. Immediately thereafter, according to the petitioner, he applied for a certified copy of the order and on securing the same he preferred Writ Appeal No. 767 of 1988 on 28-5-1988. He has also stated that during the preliminary hearing of the Writ appeal, he was advised by his Counsel to make an application before this Court for recalling the order dated 23-2-1988 in so far as it related to award of costs against the petitioner. It is stated that accordingly he filed an application on 25-6-1988 for recalling the order passed in Writ Petition No. 15793 of 1986 along with an application for condonation of delay in filing the said application. ( 8 ) IN para 6 of the affidavit, it is stated by the petitioner that in view of the judgment of the Division Bench of this Court any order recalling the earlier order is without jurisdiction and hence the petitioner was advised to file an application for review of the order dated 23-2-1988 passed in the writ petition. It is also stated that since the appeal was pending before the Division Bench, he could not file the review application and, therefore, he withdrew Writ Appeal No. 767 of 1988 and filed the application for review. On the basis of the said explanation, the petitioner has sought condonation of delay of 150 days in filing the Civil Petition. ( 9 ) BUT in the prayer portion of the affidavit, the petitioner has requested for condonation of delay of 148 days in filing the civil Petition to review the order dated 23-2-1988 passed by this Court. ( 10 ) ACCORDING to the statement of objections filed by respondents-1 and 2, the application for condonation of delay filed under Section 5 of the Limitation Act is not maintainable either in law or on facts. It is averred that the delay of 150 days in filing the civil Petition cannot be condoned and that the petitioner has not explained the delay and the reason given by him is not satisfactory. It is contended that the notice was served on the petitioner after the writ petition was filed as far back as December 1986 itself as admitted by the petitioner and he being a Sub Inspector of Police ought to have acted diligently in the matter. It is contended that the notice was served on the petitioner after the writ petition was filed as far back as December 1986 itself as admitted by the petitioner and he being a Sub Inspector of Police ought to have acted diligently in the matter. ( 11 ) IT is submitted that the petitioner was impleaded in his individual capacity in Writ petition No. 15793 of 1986 and that he did not even choose to engage a private Counsel to defend himself and that the alleged domestic problems and pressure of official work are not grounds for condonation of delay of 150 days. It is further submitted that the alleged mental strain and stress and financial constraints will not in any way help the petitioner in explaining the delay infling the Civil Petition for review. It is furtuer argued that the petitioner came to know of the order dated 23-2-1988 on 26-4-1988 when respondent-3 herein deposed before the commission of Enquiry about the order in the writ petition and the award of costs. Assuming that as the basis, it is argued that the petitioner has not acted diligently and, therefore, the application has to be rejected in limini. Therefore, it was submitted that the application for condonation of delay deserves to be dismissed. ( 12 ) SUBSEQUENT to Writ Petition No. 15793 of 1986 being allowed by this Court on 23-2-1988, since the petitioner in the instant case not only preferred a Writ Appeal before the Division Bench of this Court in Writ appeal No. 767 of 1988, but also thereafter filed an application for recalling the said order before this Court followed by a petition for review, it is necessary to refer to the facts in detail in order to decide whether or not this is a fit case for condonation of delay both on legal and equitable grounds. ( 13 ) SECTION 5 of the Limitation Act reads thus :-"any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation:- The fact that the appellant or the applicant was misled by any order, practice or judgment of the high Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. " ( 14 ) IT is now necessary to satisfy myself whether the petitioner has shown sufficient cause for not making the application within the prescribed period. ( 15 ) THE undisputed facts are that Writ petition No. 15793 of 1986 came to be allowed by an order on merits on 23-2-1988. Costs of Rs. 500/- were awarded against the petitioner herein. Though, according to the petitioner, he was served with the notice in the said writ petition before it was disposed of, only in the month of December 1986, the postal acknowledgment received after service of notice on the petitioner reveals that the notice was actually served on 10-9-1986 and not in December 1986. The Superintendent of Police, Tumkur District, Tumkur, was also served with Court notice on the very same date. The petitioner is stated to reside at Pavagada in Tumkur District, whereas the superintendent of Police is stated to be residing at Tumkur Town. There is no reason for me to dis-believe the date mentioned in the postal acknowledgement and, therefore, I hold that the petitioner came to know of the pending writ proceedings in Writ Petition no. 15793 of 1986 on 10-9-1986 and not in december 1986 as alleged by him. I have looked into the certified copy of the order of this Court passed in Writ Petition No. 15793 of 1986 on 23-2-1988 which is in the file or records relating to Writ Appeal No. 767 of 1988. In the certified copy that was produced before the Division Bench in Writ Appeal, it is seen that the application for certified copy was not made by the petitioner, but by a person by name K. Honniah stated to be a third party. The said Honniah is not a party to any of these proceedings. Therefore, the inference is that the petitioner did not make any effort to apply for a certified copy of the order dated 23-2-1988 in Writ Petition No. 15793 of 1986. The petitioner has not shown any regard for truth. ( 16 ) THE Writ Appeal was filed questioning the award of costs of Rs. 500/- against the petitioner by an appeal filed on 23-5-1988. The petitioner has not shown any regard for truth. ( 16 ) THE Writ Appeal was filed questioning the award of costs of Rs. 500/- against the petitioner by an appeal filed on 23-5-1988. Along with the Writ Appeal, an application supported by an affidavit was filed by the very same petitioner for condonation of delay in preferring the Writ Appeal, the delay being according to the petitioner 60 days. The said application was also filed under Section 5 of the Limitation Act. In para 3 of the application filed under Section 5 of the Limitation Act supported by an affidavit, the petitioner has stated as follows:-". . . . . . . . . THE appellant, on account of order of suspension and judicial enquiry was put into both mental stress and strain and financial constraints. He has further lost track of the writ petition, due to the aforesaid mental agony and he came to know of the order only on 26-4-1988, when the petitioner deposed before the commission of Enquiry about the writ petition and award of costs. Immediately he came to Bangalore and applied for the copy of the order and on obtaining it, he preferred the writ appeal. " ( 17 ) IT is clear from the said averment that the petitioner came to Bangalore and applied for the copy of the order and on obtaining it he preferred the writ appeal, according to his sworn statement. This is contrary to truth since as already mentioned the petitioner did not apply for a copy of the order and it is only a third party by name K. Honniah who applied for a certified copy of the order passed by this Court on 23-2-1988. It is also stated by the petitioner that due to mental stress and strain and financial constraints the petitioner did not engage any advocate for him to appear in the writ petition and, therefore, the writ petition came to be disposed of in the absence of the petitioner. I do not think that a responsible police Officer could take shelter under mental stress and strain and alleged financial constraints which came in the way of his engaging an Advocate to appear in the writ petition in order to defend him. I do not think that a responsible police Officer could take shelter under mental stress and strain and alleged financial constraints which came in the way of his engaging an Advocate to appear in the writ petition in order to defend him. If the petitioner could engage a Counsel for preferring a Writ Appeal and also for recalling an order passed by this Court on 23-2-1988 and further an application for review of the said order, it is not possible to accept the excuse offered by the petitioner for not engaging a Counsel to defend his case in the writ petition. ( 18 ) IN the application filed before the division Bench in Writ Appeal No. 767 of 1988, the petitioner has stated in part-4 as follows :-"it is respectfully submitted that, as no relief was sought against him, in the writ petition, the matter was not of that seriousness, which compelled his personal appearance. Hence, the delay in filing the appeal is bonafide and deliberate. "this paragraph is not to be found in the affidavit filed before me for condonation of delay. The affidavit filed before me is subsequent to the affidavit filed before the division Bench and seems to have undergone some changes of substantial nature carefully omitting what was submitted before the Division Bench. On account of domestic problems and judicial enquiry at pavagada that the petitioner was unable to contact an Advocate cannot be believed. It cannot be said that the petitioner had no respite to make a visit to Bangalore to engage a Counsel. ( 19 ) BEFORE the Division Bench in Writ appeal on 11-7-1988, the learned Counsel for the petitioner had submitted to the Court that an application had been filed for the modification of the order by the learned single Judge and that he prays for an adjournment. Consequently, the case was adjourned by the Division Bench by four weeks. Thereafter, on 11-8-1988, the petitioner filed a memo before the Division bench seeking permission to withdraw the writ Appeal as he had filed an application before the learned single Judge for modification of the order and accordingly the Writ Appeal was dismissed as withdrawn on 11-8-1988. ( 20 ) NOW I shall advert to what transpired before this Court. Thereafter, on 11-8-1988, the petitioner filed a memo before the Division bench seeking permission to withdraw the writ Appeal as he had filed an application before the learned single Judge for modification of the order and accordingly the Writ Appeal was dismissed as withdrawn on 11-8-1988. ( 20 ) NOW I shall advert to what transpired before this Court. An application dated 27- 6-1988 for recalling the order dated 23-2- 1988 was filed by the petitioner on 8-7-1988 in Writ Petition No. 15793 of 1986 and the same was dismissed as not maintainable by this Court on 18-8-1988. The Civil Petition for review of the order dated 23-2-1988 in writ Petition No. 15793 of 1986, though dated as 17-8-1988, was filed on 19-8-1988. The present application for condonation of delay dated 17-8-1988 was also filed on 19-8-1988. In this application, the delay sought to be condoned is of a period of 150 days though in the earlier paragraphs of the affidavit the delay is stated to be 148 days. I have gone through the affidavit filed by the petitioner. In para 4 of the affidavit though the petitioner states that since he was impleaded as respondent-3 by name in the writ petition No. 15793 of 1986 and though he thought it fit to enter appearance through an advocate in the writ proceedings, but on account of certain domestic problems and pressure of official work he had to postpone his visit to Bangalore. He has further stated that in the month of February 1987 there was public agitation and policy firing in Pavagada and a judicial enquiry was ordered keeping the petitioner under suspension from 16-2-1987. It cannot be said that during the period of suspension, the petitioner could not contact a Counsel at Bangalore and engage an Advocate to defend his case in writ Petition No. 15793 of 1986. There is no satisfactory explanation to explain the conduct of the petitioner in this regard. The impugned order was passed on 23-2-1988 and nothing prevented the petitioner to take necessary and diligent steps to defend his case upto 23-2-1988 from the date of his suspension in order to defend himself in the writ petition. The presumption is that the petitioner was aware of the writ proceedings pending against him from the day on which he was served with notice from the Court till the writ petition was disposed of on 23-2-1988. The presumption is that the petitioner was aware of the writ proceedings pending against him from the day on which he was served with notice from the Court till the writ petition was disposed of on 23-2-1988. Subsequent to the disposal of the writ petition, the petitioner states that he came to know of the impugned order of 23-2- 1988 only on 26-4-1988 when respondent-3 herein deposed before the Enquiry Commission of the fact that the writ petition had been allowed and costs of Rs. 500/- were awarded against the petitioner. It is not explained as to how the petitioner did not make any enquiry about the progress of the writ petition particularly in view of the serious allegations that had been made against him in the writ petition and especially when he had been served with Court notice along with a copy of the writ petition. The conduct of the petitioner in taking things for granted and in not exercising the care and diligence which is expected of a reasonable and prudent person, destroys the bonafides of the petitioner in seeking condonation of delay so belatedly. The petitioner has not shown even the ordinary care and caution expected of him being a responsible Police Officer either before the writ petition was disposed of on 23-2-1988 or after the writ petition was disposed of. The petitioner is trying to seek refuge under the deposition of respondent-3 herein and that he came to know of the Court order only on 26-4-1988 appears to be unnatural and cannot be depending upon. Whereas the Civil Petition for review dated 17-8-1988 was filed on 19-8-1988, the vakalath of the petitioner was executed on 19-8-1988. I also see uninitialled correction of the date on page 7 of the Civil petition where in the date 17-8-1988 has been altered to 19-8-1988 and similarly in the affidavit. In fact, in the affidavit the date 17-8-1988 has been altered to 19-8-1988 without initials. Similarly, in the application which is now under consideration for condonation of delay in the index the date is shown as 17-8-1988 whereas in the presentation form the date is indicated as 19-8-1988. Further, in the application which is supported by an affidavit, the date 17-8-1988 has been altered to 19-8-1988 without initials and so also in the affidavit though the original date is 17-8-1988, it is altered as 19-8-1988 without initials. Further, in the application which is supported by an affidavit, the date 17-8-1988 has been altered to 19-8-1988 without initials and so also in the affidavit though the original date is 17-8-1988, it is altered as 19-8-1988 without initials. ( 21 ) AS rightly submitted by the learned advocate General, the petitioner came to know of the order dated 23-2-1988 according to his own admission on 26-4-1988 and even taking that as the basis, it cannot be said that the petitioner acted diligently and, therefore, the application deserves to be rejected in limini. The other argument of the learned advocate General that the petitioner was impleaded in his individual capacity in Writ petition No. 15793 of 1986 and he did not even choose to engage a private Counsel to defend himself shows the callousness of the petitioner and it cannot be overcome by offering the pretext of domestic problems and pressure of official work. Apart from this, having been duly served with a notice by the Court in 1986 itself of the pending writ petition in Writ Petition No. 15793 of 1986, the conduct of the petitioner in not even moving his little finger to defend himself if he had valid defence does not deserve an equitable consideration. ( 22 ) THERE is absolutely no justification for this Court to take a lenient view of the serious remiss on the part of the petitioner in not responding to the Court notice and subsequently in not approaching this Court in time. I am not satisfied with the explanation offered by the petitioner for condonation of delay. ( 23 ) THE following dictum is apposite to the facts of this case :-"the Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life'. " ( 24 ) THE Conduct of the petitioner through out is less than satisfactory in the light of the discussion made above. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life'. " ( 24 ) THE Conduct of the petitioner through out is less than satisfactory in the light of the discussion made above. I, therefore, dismiss i. A-II for condonation of delay in filing the civil Petition. Consequently, the Civil petition does not survive for consideration and is, therefore, also dismissed petition dismissed --- *** --- .