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2015 DIGILAW 725 (KAR)

T. Hanumanthappa v. Ameena Bee @ Halima Bee

2015-07-09

B.VEERAPPA

body2015
ORDER : The plaintiff has filed the above revision petition against the order dated 18.11.2014 on I.A.2 made in the Miscellaneous Case No.17/2011 on the file of the learned Principal Civil Judge and JMFC, Bellary, allowing the application for condoning the delay and permitting the defendant/respondent to proceed with the miscellaneous case. 2. It is the case of the plaintiff/ petitioner herein, that he had filed a suit in O.S.79/2008 against the defendant/respondent herein, for specific performance to enforce the oral agreement said to have been executed by the defendant, contending that the defendant had approached the plaintiff and one Sanjeevappa to cultivate her lands in question and thereafter she agreed to sell the land and in part performance of said agreement, she had put the plaintiff and Sanjeevappa in possession of Schedule-A property measuring 10 acres 05 guntas out of which plaintiff/petitioner herein was put in possession of to an extent of 5 acres 05 guntas in R.S.No.191/B situated at Bellary, and remaining extent was in possession of Sanjeevappa and the suit came to be decreed on 01.072008 exparte, etc. 3. Against the said exparte judgment and decree, the defendant/respondent filed has filed Misc. Case No.17/2011 and since there was delay in filing the said miscellaneous case, she filed an application under Section 5 of the Limitation Act to condone the delay in filing the miscellaneous. The said application was resisted by the petitioner herein by filing objections. The Trial Court, after considering the application I.A.II and objections, by the impugned order dated 18.11.2012 has allowed said I.A.II and condoned the delay in filing the Miscellaneous Case and permitted the defendant/respondent to proceed with the case. 4. Against the said order present revision petition is filed by the petitioner. 5. I have heard the learned Counsel for the parties to the lis. 6. Ms. Rekha Patil, learned Counsel for the petitioner has contended that since there was inordinate delay in filing the miscellaneous case, no sufficient reason was assigned for condoning the inordinate delay and the trial court ought to have dismissed the application. Therefore, the impugned order passed by the trial court is erroneous and contrary to law. 6. Ms. Rekha Patil, learned Counsel for the petitioner has contended that since there was inordinate delay in filing the miscellaneous case, no sufficient reason was assigned for condoning the inordinate delay and the trial court ought to have dismissed the application. Therefore, the impugned order passed by the trial court is erroneous and contrary to law. She also contended that the respondent did not enter into box to give evidence in support of her case and her power of attorney who was examined as PW-1 had no personal knowledge about the facts averred in the main petition as well as in the affidavit filed in support of I.A.II. She also contended that the respondent herein has got her residence at Bangalore as well as in Belgaum. The same is shown in the cause title. The respondent did not claim that she was not residing at the address shown in the plaint in O.S.79/2008. The summons in O.S.79/08 was published in the newspaper having wide circulation at the place of residences of respondent. However, the respondent did not appear and contest the suit and therefore, she cannot be permitted to take advantage of her own wrong. Therefore, she contends that the impugned order passed by the trial Court condoning the delay is against law and sought to set aside the impugned order. 7. Per contra, Sri. S.H. Mittalkod, learned Counsel for respondent, sought to justify the impugned order and contended with vehemence by referring to Order Sheet that notice of O.S.79/08 was issued to defendant/respondent herein on 11.2.2008 and it was returned on 4.3.20088 and on that date the Presiding Officer was on OOD. Again the matter was called on 18.3.2008. On that day, summons was issued to defendant by RPAD which was returned with shara “insufficient address”. On the same day, learned advocate Sri N.P. filed petition under Order 5 Rule 20 read with Section 151 of Code of Civil Procedure by paying P.F for paper publication, which was allowed and permitted the plaintiff/petitioner herein to take out notice through paper publication. The same is contrary to law. On the same day, learned advocate Sri N.P. filed petition under Order 5 Rule 20 read with Section 151 of Code of Civil Procedure by paying P.F for paper publication, which was allowed and permitted the plaintiff/petitioner herein to take out notice through paper publication. The same is contrary to law. If the address given by the plaintiff/petitioner was insufficient it was the duty of the plaintiff to get correct address of the defendant/respondent herein and in spite of taking steps on three occasions still the defendant/respondent avoids notice though residing in the same address, then only the plaintiff can file application under Order 5 Rule 20 Section 151 of Code of Civil Procedure. The said procedure has not been followed by the learned Judge. On the same day he allowed the application itself. The petitioner has played fraud by managing not to serve the notice on all the occasions and finally has taken paper publication and proceeded with the case by leading evidence and got exparte decree dated 1.7.2008 by misleading the court. It shows that no sufficient opportunity was given to the respondent to put forth her case and the exparte order cannot be sustained in law. The learned Counsel also pointed out from the trial court order sheet in O.S.79/08 that when the matter was posted on 10.4.2008 on that day summons was issued to defendant through paper publication, defendant called out, and placed exparte and proceeded to pass the impugned order. The defendant/respondent herein came to know about the exparte order during the month of March 2011 when she applied for ROR and found that the name of the plaintiff/petitioner herein has been mutated in the ROR. Therefore, she was constrained to file the present Misc. Case No.17/2011 along with I.A.II for condoning the delay which was bonafide and the trial Court has rightly allowed the said application and permitted the respondent herein to proceed with the case. Accordingly, he sought to justify the impugned order. 8. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record. 9. It is an admitted fact that the present petitioner who is the plaintiff filed O.S.No.79/2008 for specific performance of agreement to enforce the agreement said to have been executed by the defendant and the same was decreed exparte. 9. It is an admitted fact that the present petitioner who is the plaintiff filed O.S.No.79/2008 for specific performance of agreement to enforce the agreement said to have been executed by the defendant and the same was decreed exparte. As against the said exparte decree, the present respondent has filed Misc. Case No.17/2011 along with an application for condoning the delay. In order to explain the delay in filing the miscellaneous case, the respondent examined through her power of attorney holder as PW.1 and produced documents Ex.P.1 to P.13. Ex.P.1 is certified copy of the order sheet in O.S.79/2008, Ex.P.2 is the certified copy of the plaint, Ex.P.3 is the challan, Ex.P.4 is the copy of the judgment, Ex.P.5 is the decree, Ex.P.6 is the affidavit of PW.1, Ex.P.7 is the copy of order sheet, Ex.P.8 is the petition copy in Ex.P.232/08, Ex.P.9 is the affidavit of decree holder, Ex.P.10 and P.11 are the interim applications and Ex.P.12 is the Memo and Ex.P.13 is certified copy of summons. It is not in dispute that when the case was posted on 18.3.2008 the order sheet clearly disclose that summons to the defendant was issued by RPAD which was returned with shara as Insufficient Address. On that day, the plaintiff has not furnished any correct address nor taken any fresh steps but instead he has filed application under Order V Rule 20 of CPC for taking out paper publication and the said application was allowed permitting the petitioner to take out paper publication, which is contrary to the very provisions of Order V Rule 20 of CPC. 10. Provisions of Order V Rule 20 of Code of Civil Procedure, CPC reads as under: “20. Substituted service.- (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. (1A) Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) Effect of substituted service—Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed—Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.” In the present case, the material documents produced by the petitioner does not disclose that respondent was served through proper procedure and there is a procedural irregularity in serving notice on the defendant. The trial court considering the entire averments and document and other material on record came to the conclusion that the petitioner has assigned sufficient reason to condone the delay in filing the application. 11. It is also not disputed by the petitioner that respondent/defendant who is aged lady is residing in Bangalore and it is not known whether she had occasion to read or able to read daily newspaper on every day and according to the averments made in the petition she is unable to read Kannada language since her mother tongue is Urdu. Therefore, it can be assumed that she has no personal knowledge about the institution of suit in O.S.79/08 against her by the plaintiff/respondent and therefore, she could not appear on the date of hearing and did not contest the matter. 12. The Hon’ble Supreme Court while considering the provisions of Section 5 of the Limitation Act to condone the delay in the case of Dhiraj Sing vs. State of Haryana, reported in (2014) 14 SCC 127, relying upon the earlier dictum in the case of Collector (LA) Vs. Katiji, (1987) 2 SCC 107 , has held as under: “(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. (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) 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) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 13. It is also significant to note from the Order Sheet in O.S.79/2008 that when the execution petition is field by the petitioner herein against the respondent herein in E.P. 232/2008, no cause notice or other notices were served upon the respondent herein. Therefore, on that reasons also the respondent herein was not aware of the execution proceedings against her. As per contents of the petition, she came to know about passing of the exparte decree against her for the first time in the last week of March 2011 and immediately she applied for certified copies of the same and filed the present Misc. Case within 30 days from the date of knowledge and only by way of abundant caution she filed application under Section 5 of the Limitation Act. The petitioner/respondent herein has assigned sufficient reason to allow the application and to proceed with the case. 14. Therefore, considering entire material on record and the law declared by the Hon’ble Supreme Court, the impugned order passed is in accordance with law and the petitioner has not made out any ground to interfere with the impugned order passed by the trial Court. Accordingly, revision petition is dismissed. 14. Therefore, considering entire material on record and the law declared by the Hon’ble Supreme Court, the impugned order passed is in accordance with law and the petitioner has not made out any ground to interfere with the impugned order passed by the trial Court. Accordingly, revision petition is dismissed. Any observations made by the trial Court while passing the impugned order or the observations made by this court shall not influence the case of any of the parties while deciding the miscellaneous case independently on merits and in accordance with law by the trial court. Registry is directed to return the records to the Trial Court forthwith.