B. SITARAM v. MANJUNATH CO-OPERATIVE CREDIT SOCIETY LTD.
2013-04-03
K.N.KESHAVANARAYANA
body2013
DigiLaw.ai
ORDER K.N. KESHAVANARAYANA, J.-There has been delay of 598 days in filing this revision petition filed under Section 18 of the Karnataka Small Cause Courts Act. The petitioner has sought for condonation of delay by filing I.A. No. 1/2012 supported by an affidavit. 2. The respondent/plaintiff filed small cause suit in S.C. No. 66/2000 before the III Additional Senior Civil Judge, Belgaum, for recovery of a sum of Rs. 24,925/- from the petitioner. The suit came to be decreed by judgment dated 16.11.2010. Aggrieved by the said judgment and decree, the petitioner has presented this revision petition. 3. In the affidavit filed in support of the application, it is stated that there has been a delay of about 626 or 627 days in filing this revision petition from the date of decree, for the reasons that the decree came to be passed on 26.11.2010 and this fact came to his (petitioner's) knowledge within three days and thereafter, that he was surprised to know that the decree was passed without there being any date of trial from the month of February 2010, since, the suit had been referred to Lok-Adalath, Belgaum. It is further stated in the affidavit that when he enquired in the office of the Court that he was told that the case is referred to Lok-Adalath and on the repeated enquiries made by him and also by his counsel, the only response was that the case is not before the Court and when he tried to ascertain from the office of the Lok-Adalath, there was no response from there also. Thus, according to the petitioner, the papers were not traced for a period of 6-7 months from the month of February 2010. 4. It is further stated in the affidavit that prior to February 2010, on account of the ill-health, he could not appear before the Court on three hearing dates to tender evidence and during that period, he was taking treatment as inpatient in KLE hospital, Belgaum from 19.01.2010 to 25.01.2010 and thereafter, he was advised to take complete bed rest for a period of one month, on account of which he was unable to contact his advocate.
It is further stated in the affidavit that when the case papers were not traced before the trial court, he gave a written complaint to the Hon'ble Chief Justice through his letter dated 18.11.2010 and thus, he was under bona fide impression that the case is on Board and it would be heard. However, to his surprise, he came to know that the decree is passed. 5. It is his further say that, immediately he preferred a review petition before the same Court seeking review of the decree, which came to be dismissed on 25.11.2010 and again under bona fide belief and impression, he preferred a regular appeal in R.A. No. 208/2011 before the District and Sessions Court, Belgaum, on 14.07.2011. However, during the course of hearing of the said appeal, he came to know that the appeal is not maintainable and that he is required to prefer a revision petition. Therefore, by filing a memo on 24.09.2012, he sought permission of the Appellate Court to withdraw the appeal and permit him to file a revision petition before this Court and accordingly, the said appeal came to be dismissed as withdrawn. Thus, according to the petitioner, there has been delay and the delay is beyond his control and on account of pursuing a remedy before a wrong forum under bona fide mistake. Therefore, benefit of Section 14 of the Limitation Act (for short 'the Act') is required to be extended and if that is extended, there is no delay, as such, he has sought for condoning the delay. 6. The application is opposed by the respondent-plaintiff by filing statement of objections, wherein the respondent has denied all the contentions of the petitioner in the affidavit filed in support of the application. 7. I have heard both sides. 8. As noticed supra, even according to the petitioner, he came to know about the judgment and decree dated 26.11.2010 within three days thereafter. This is obviously because even according to the petitioner, he filed a review petition before the very Court on 25.11.2010, that is about nine days after the date of the judgment and decree. The said review petition came to be dismissed on 02.06.2011. Thereafter, the petitioner seems to have filed an appeal in R.A. No. 208/2011 before the District Court, which came to be dismissed as not pressed on 28.09.2012. The present petition came to be filed on 04.10.2012.
The said review petition came to be dismissed on 02.06.2011. Thereafter, the petitioner seems to have filed an appeal in R.A. No. 208/2011 before the District Court, which came to be dismissed as not pressed on 28.09.2012. The present petition came to be filed on 04.10.2012. 9. Section 14 of the Act provides for exclusion of time of proceeding bona fide in Court without jurisdiction. Section 14(1) of the Act provides that, in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 10. Section 14(2) of the Act provides that in computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 11. From perusal of Section 14, it is clear that the benefit of this Section can be extended only where the applicant has been prosecuting with due diligence another civil proceeding and that such proceeding was being prosecuted in good faith in a Court which had no jurisdiction. 12. In the case on hand, the petitioner has sought for excluding the period taken for deciding the review petition and also the Regular Appeal. Question would be as to whether it could be held that the petitioner was prosecuting those proceedings with due diligence and in good faith. 13. Order 47, Rule 1 of CPC provides for review of judgment.
In the case on hand, the petitioner has sought for excluding the period taken for deciding the review petition and also the Regular Appeal. Question would be as to whether it could be held that the petitioner was prosecuting those proceedings with due diligence and in good faith. 13. Order 47, Rule 1 of CPC provides for review of judgment. According to Order 47, Rule 1, any person considering himself aggrieved by a decree or order from which no appeal is allowed and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 14. The review petition filed before the very Court of Small Causes was not based on any of the reasons set out in Rule 1 of Order 47 of CPC. Therefore, it cannot be said that the petitioner was prosecuting the review petition with due diligence and in good faith. It is well settled law that no appeal is allowed against the judgment and decree of the Court of Small Causes and only a Revision under Section 18 of the Act is permitted. Having regard to the specific law, merely because the petitioner had filed a Regular Appeal and the said appeal was pending for sometime, it cannot be said that the petitioner had prosecuted the said appeal with due diligence and in good faith. Therefore, in my considered opinion, this is not a fit case to which the benefit of Section 14 of the Act deserves to be extended. 15. Apart from seeking benefit of Section 14 of the Act, no other reasons are set out in the affidavit filed in support of the application for condoning the delay of 598 days in filing this revision petition. 16. It is also necessary to note the conduct of the petitioner.
15. Apart from seeking benefit of Section 14 of the Act, no other reasons are set out in the affidavit filed in support of the application for condoning the delay of 598 days in filing this revision petition. 16. It is also necessary to note the conduct of the petitioner. Even according to the petitioner, he had been to the Court of Small Causes on 19.02.2010 which was the date of hearing of the case. However, according to him, on that day, he was told that the case has been referred to Lok Adalath, but, he did not hear anything from the Lok Adalath and his repeated enquires made in the office of the Court and also in the office of the Lok Adalath did not yield any result and ultimately, he sent a representation to the Hon'ble Chief Justice on 18.11.2010. It is to be noted here that on 16.11.2010 itself the Court had passed the judgment and decree. Obviously, the petitioner after coming to know of the judgment and decree passed by the Court on 16.11.2010, sent a representation to the Hon'ble Chief Justice on 18.11.2010 making certain allegations that the records were not traced, by stating that the matter has been referred to Lok Adalath and he was not aware of the hearing dates and that no opportunity has been given to him. However, the perusal of the order sheet, certified copy of which is made available for perusal of the court, indicates that on 19.02.2010, the case was called in the open Court, as it had been set down for hearing arguments and the learned Judge has noted that none of the parties and their counsel present. The order sheet further indicates that repeatedly the case was called in the open Court and since neither the parties nor their counsel were present, it was adjourned from time to time and ultimately, since none appeared, the Court proceeded to pass the judgment and decree on 16.11.2010. 17. The perusal of the order sheet does not indicate that at any point of time, the suit was referred to Lok Adalath. Absolutely, no material is produced before this Court to show that at any point of time the suit had been referred to Lok Adalath or to show that the parties to the suit were given an impression that the matter has been referred to Lok Adalath.
Absolutely, no material is produced before this Court to show that at any point of time the suit had been referred to Lok Adalath or to show that the parties to the suit were given an impression that the matter has been referred to Lok Adalath. The submissions made in the affidavit filed in support of the application in this regard are contrary to the notings made by the learned Judge in the order-sheet. In the absence of any acceptable evidence, there are no reasons to disbelieve the notings in the order sheet of the Court concerned. 18. In this view of the matter, I am of the considered opinion that the petitioner has not made out any ground much less sufficient ground for condonation of long delay of 598 days in filing this revision petition. In this view of the matter, I find no merit in this application. Accordingly, the application is rejected. Consequently, the revision petition is also rejected.