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2015 DIGILAW 33 (KAR)

Chanabasavva v. Chandrappa Sangappa Pilli

2015-01-05

ARAVIND KUMAR

body2015
ORDER : Aravind Kumar, J. 1. Defendant in O.S. No. 118/1996 being aggrieved by the order passed by the Senior Civil Judge, Gadag sitting at Laxmeshwar dated 22.02.2011 in Misc. No. 20/2009 have invoked the revisional jurisdiction of this Court contending inter alia that lower Appellate Court ought not to have dismissed the petition filed under Order 41, Rule 19 on account of application filed under Section 5 of the Limitation Act, 1963 seeking for condonation of delay in filing the restoration petition being dismissed since delay ought to have been condoned. I have heard the arguments of Shri. Laxman T. Mantagani, learned counsel appearing for the petitioners and Shri. R.S. Ankalakot, learned counsel appearing for respondent. Perused the order passed by the Trial Court. 2. Respondent herein was the plaintiff in O.S. No. 118/1996 and had filed a suit for declaration and injunction which suit came to be decreed and being aggrieved by same, an appeal came to be filed in R.A. No. 63/2004 by appellant herein. On service of notice, respondent - plaintiff appeared and contested the matter. The order sheet of R.A. No. 63/2004 made available during course of his arguments by Shri. Laxman T. Mantagani, learned counsel appearing for the petitioners would disclose that matter was being adjourned from time to time for hearing the arguments on main matter. It would also indicate that on many number of occasions appellants and his counsel have remained absent. It is no doubt true that when the matter is entrusted to the counsel physical presence of the appellants may not be necessary until and unless directed by the Court. 3. In the instant case, order passed by lower Appellate Court would indicate that on account of counsel and appellants being absent on 23.01.2008 appeal came to be dismissed for default. It is contended that appellants had engaged one Shri. T.D. Patil to conduct the appeal and he in turn had engaged Shri. J.S. Kulkarni, advocate to conduct the appeal. It was stated by the appellants that their advocate had intimated them about their presence not being necessary and as such, they did not appear on 23.01.2008, namely the date of hearing. It was stated by the appellants that their advocate had intimated them about their presence not being necessary and as such, they did not appear on 23.01.2008, namely the date of hearing. On the said date as per the order sheet of the lower Appellate Court, it would indicate Shri. J.S. Kulkarni, learned counsel who had been engaged by Shri. T.D. Patil, on behalf of appellants and who was conducting the appeal had also remained absent. As such, already noticed herein above Lower Appellate Court dismissed the appeal for non-prosecution on 23.01.2008. 4. It is thereafter petition under Order 41 Rule 19 seeking restoration of the appeal along with an application for condonation of delay came to be filed. Lower Appellate Court has dismissed the miscellaneous petition filed under Order 41, Rule 19 together with application for condonation of delay on the ground that petitioner had not examined Shri. T.D. Patil, advocate who had intimated the appellants about dismissal of the appeal and also on the ground that appellants had failed to prove each day of delay in preferring the petition for restoration. At this juncture, it requires to be noticed that Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others reported in has held that when technicalities are pitted against substantial justice, such technicalities will have to yield to substantial justice. If each days delay is to be explained, then next question that would arise is as to why each hour's delay or each minutes delay has not been explained. It has been held by the Hon'ble Apex Court in the above referred Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others reported in AIR 1987 SC 1353 to the following effect: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay." 5. The above contours laid by the Hon'ble Apex Court which are illustrative in nature when kept in mind and facts on hand are examined, it would not detain this Court for too long to set aside the order passed by the lower Appellate Court for the reason that it is not the length of delay which would be the ground on which an application for condonation of delay will have to be examined, but whether there is sufficiency in the cause shown that would be considered for condoning the delay. 6. In the instant case, appellants have contended that they had entrusted the matter to Shri. J.S. Kulkarni, who was resident of Yaluvigi village and as such, he in turn had entrusted the matter to Shri. T.D. Patil to conduct the appeal on his behalf. As already noticed herein above, the lower Appellate Court has rejected the application for condonation of delay on the ground that said Shri. T.D. Patil was not examined. It is not in dispute that said learned advocate Shri. T.D. Patil expired on 19.08.2008, as such, the appellants could not have been expected to examine the said learned advocate who had already expired. As such, the cause shown for the delay though does not inspire confidence in its entirety, it is to be noticed that substantial justice demands and commands that such technical plea of non-examination of learned advocate would not be a good ground to disbelieve the plea put forward by the appellants before the lower Appellate Court for their non-appearance. It is no doubt true that the appellants ought to have entered the witness box to prove the contention raised by them for reasons best known they did not enter the witness box. No useful purpose would be served by sending the matter back to lower appellate court on this ground. 7. It is no doubt true that the appellants ought to have entered the witness box to prove the contention raised by them for reasons best known they did not enter the witness box. No useful purpose would be served by sending the matter back to lower appellate court on this ground. 7. It is in this background, the lower Appellate Court had no other option, but to arrive at a conclusion that the appellants had failed to prove the cause not being sufficient to condone the delay. 8. As already stated herein above delay having been explained by assigning the reason which would amount to sufficient cause Hence, this Court is of the considered view that order passed by the lower Appellate Court dismissing the application and consequently the petition filed under Order 41 Rule 19 cannot be sustained. 9. It also requires to be noticed that for no fault of the plaintiff he has been made to appear before two forums namely before the lower Appellate Court and before this Court to defend the order of dismissal. As such, imposition of exemplary cost on the petitioners/appellants/defendants payable to respondent/plaintiff would meet the ends of justice. As noticed by Trial Court, second appellant is an employee of Nationalized Bank. Third appellant is an employee in a Central Government undertaking BSNL. Fourth appellant is a businessman. As such, they are liable to be mulcted with cost payable to respondent - plaintiff. In the result, I proceed to pass the following order: ORDER "i) Revision petition is hereby allowed. ii) Order passed by Senior Civil Judge, Gadag sitting at Laxmeshwar dated 22.02.2011 in Miscellaneous No. 20/2009 is hereby set aside. iii) I.A. No. 1 along with Misc. No. 20/2009 is hereby allowed with cost quantified at Rs. 15,000/- payable by petitioners/defendants to the respondent/plaintiff on the first date of hearing before the lower Appellate Court R.A. No. 63/2004 for being disposed of on merits is restored to file for lower Appellate Court. iv) It is agreed that both parties will appear before the lower Appellate Court on 23.01.2015 and lower Appellate Court is not required to issue any fresh court notices to any of the parties. iv) It is agreed that both parties will appear before the lower Appellate Court on 23.01.2015 and lower Appellate Court is not required to issue any fresh court notices to any of the parties. v) Lower Appellate Court shall dispose of the appeal expeditiously at any rate within six months from 23.01.2015, subject to both parties co-operating with the lower Appellate Court and it is also made clear that in the event of either of the parties were to seek for an adjournment without giving satisfactory explanation, lower Appellate Court would be at liberty to impose exemplary costs on such of the parties who seek for adjournment."