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2007 DIGILAW 733 (KAR)

PADMA v. KARNATAKA ELECTRICITY BOARD

2007-11-12

D.V.SHYLENDRA KUMAR

body2007
ORDER D.V. Shylendra Kumar, J This civil revision petition under section 115 of the Code of Civil Procedure is against the order dated 31.8.2006 passed in Misc. No. 200 of 2004 on the file of the XVI Addl. City Civil & Sessions Judge, Bangalore City, where under the learned Judge of the city civil court has rejected the Misc. No.200 of 2004 which had been filed under Order IX Rule 4 of the Code of Civil Procedure for setting aside the earlier dismissal of the suit on 26.5.2003 in OS No.2413 of 2001 wherein the petitioners figured as plaintiffs for non-prosecution and particularly by rejecting the application that had been filed in Misc. No. 200 of 2004 under Section 5 of the Limitation Act seeking condonation of delay in preferring, the Miscellaneous Petition, which application had been dismissed and consequently the Miscellaneous petition also dismissed. 2. The dismissal of the application for condonation of delay and the Miscellaneous petition under the impugned order forecloses the option of the petitioners - plaintiffs in the suit and the suit which had been filed claiming damages against two defendants becomes final and it is because of such reason, the present revision petition under Section 115 of the Code of Civil Procedure. 3. Notice had been issued to the respondents on the civil revision petition regarding admission. While respondent No.1 is represented by Sri. S R Shivaprakash, learned counsel, respondent No.2 is represented by Sri. Somasundara Dixit, learned counsel. 4. I have heard Sri. Sharath Kumar, learned counsel for the petitioner and Sri. Somasundara Dixit, learned counsel for the respondent No.2. 5. Submission of Sri. While respondent No.1 is represented by Sri. S R Shivaprakash, learned counsel, respondent No.2 is represented by Sri. Somasundara Dixit, learned counsel. 4. I have heard Sri. Sharath Kumar, learned counsel for the petitioner and Sri. Somasundara Dixit, learned counsel for the respondent No.2. 5. Submission of Sri. Sharath Kumar, learned counsel for the petitioners is that the learned judge of the trial court could not have dismissed the application for condonation of delay filed under Section 5 of the Limitation Act and also the Miscellaneous petition by holding that the petitioners had not made out any good ground for condoning the delay and therefore the application was to be rejected; that when the petitioner No.1 had explained the entire period of delay, particularly, the reason for the delay subsequent to the dismissal of the suit as on 26.5.2003 upto the date of filing of the Miscellaneous petition on 3.3.2004 properly, it was not open to the learned Judge to say that the delay has not been properly explained or that the delay had not been explained as on day to day basis as was pointed out by the contesting respondent. 6. A perusal of the impugned order and the affidavit that had been filed by the petitioners in support of the application under Section 5 of the Limitation Act does indicate that the petitioner No.1 had reasonably and satisfactorily explained the steps, that she had taken ever since she came to know about the dismissal of her suit for non-prosecution which it is averred that she came to know only during December 2003 when she returned to Bangalore from her native place where she was forced to stay due to her ill health ever since December 2002 and the affidavit indicates that thereafter the petitioner No.1 has not relaxed but has continuously made efforts to contact her Advocate to take necessary steps and application as such was filed only by 3.3.2004 when all necessary copies were obtained and application prepared and filed by her Advocate. Such an affidavit while is not countered by any detailed objection filed on behalf of the contesting respondent, what was pointed out by the respondent was only that the delay had not been explained on day to day basis. 7. Such an affidavit while is not countered by any detailed objection filed on behalf of the contesting respondent, what was pointed out by the respondent was only that the delay had not been explained on day to day basis. 7. Learned Judge of the trial court while did not disbelieve the affidavit, only found reason to dismiss the same holding that it had not been supported by commensurate material or by examining the Advocate for the petitioners. 8. A sworn statement in the form of an affidavit is itself evidence. Unless such an evidence is countered by the other side by any other superior evidence or the affidavit is demonstrated before the court to be false or incorrect, there is no reason to reject the affidavit. 9. The learned Judge of the court below does not attribute any such possibility to the petitioners that the affidavit is either incorrect or not believable for any reason. On the other hand, the reasoning assigned is that it is not supported by further better evidence. In my view, such reasoning is nothing but a perverse reasoning and uncalled for particularly when no malafide can be attributed to the petitioners nor any negligent inaction. Petitioner No.1 has tried to bonafide explain the delay and the affidavit is one which deserves to be accepted on the face of it. 10. In my view, the reason that the delay had not been explained on day to day basis is ignoring affidavit which clearly did establish that the delay had been explained upto the date of filing of the Miscellaneous petition with the application for condonation of delay and therefore the application of this nature should have been allowed and Miscellaneous petition entertained on merits. 11. The impugned order is a case where the jurisdiction is not exercised in a proper manner. An application under Section 5 of the Limitation Act is one for condonation of delay in filing Miscel laneous petition or application under any other provision and the examination should be from the angle as to whether the petitioners had made out a case for condonation of delay and not from the angle as to whether it deserves to be rejected. The approach also is not proper and therefore the impugned order is not sustainable. 12. Civil Revision Petition allowed. The impugned order dated 31.8.2006 passed in Misc. The approach also is not proper and therefore the impugned order is not sustainable. 12. Civil Revision Petition allowed. The impugned order dated 31.8.2006 passed in Misc. No.200 of 2004 is hereby set aside and the application filed under Section 5 of the Limitation Act allowed. 13. The matter is remanded to the court below with a direction to restore Misc. No. 200 of 2004 to its file and to proceed further in the matter. Parties to bear their own costs.