Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 1455 (KAR)

B. Pushpalingam v. Gandhiwada Co-operative Housing Society Ltd. , by its Honorary Secretary

2017-11-03

H.B.PRABHAKARA SASTRY

body2017
JUDGMENT : 1. Heard both sides on I.A.1/2017, 2/2017 and 3/2017. 2. The applicants in all these three I.As. are the appellants in this review petition, which is filed in RSA No.536/2007. The said RSA was disposed of by this Court by its judgment dated 12.06.2014. 3. The respondent No.2 is said to have died on 29.05.2007. There is a delay of 3573 days in filing the LRs application. Seeking condonation of the said delay, the petitioners have filed I.A.1/2017 under Section 5 of the Limitation Act. Seeking setting aside of the abatement, they have filed I.A.2/2017 under Order 22 Rule 9 of the Code of Civil Procedure. Seeking permission to bring the legal representatives of deceased respondent No.2 as respondents 2(a), 2(b) and 2(c) on record, they have filed I.A.3/2017 under Order 22 Rule 3 of the Code of Civil Procedure. 4. The consideration of I.A.2/2017 and I.A.3/2017 arises provided I.A.1/2017 is allowed by condoning the delay of 3573 days in filing the LRs Application. In I.A.1/2017, the applicants/petitioners have explained the cause for delay in paragraph No.2. Since the entire application is very short in its contents, the said application in its entirety is produced hereinbelow: “1. The petitioners have filed top noted review petition seeking review of the judgment and decree dated 12.06.2014 passed in RSA No.536/2007 on the file of the High Court of Karnataka, Dharwad. 2. The petitioners most humbly submits that he was not aware of the death of respondent No.2. It was only when the counsel appearing for 2nd respondent reported death, the petitioner came to know about the death of respondent No.2. The petitioner was not able to secure the particulars of legal representative of deceased respondent No.2 and also their addresses. It is only after securing all the particulars steps have been taken to file the top noted application. In the process, there is some delay in filing LR application. The said delay is neither deliberate nor intentional but due to bona-fide reasons. If the said delay is not condoned, the petitioners will be put to heavy and irreparable loss. On the contrary no prejudice will be caused to other side, if delay is condoned. Wherefore this Hon’ble Court may be pleased to condone the delay of 3573 days to meet the ends of justice and equity.” One Sri. Chandramohan, petitioner No.1 in the Review Petition has only filed verifying affidavit. On the contrary no prejudice will be caused to other side, if delay is condoned. Wherefore this Hon’ble Court may be pleased to condone the delay of 3573 days to meet the ends of justice and equity.” One Sri. Chandramohan, petitioner No.1 in the Review Petition has only filed verifying affidavit. 5. The learned counsel for the proposed respondent Nos. 2(a) to 2(c) has submitted that, though he has got no objection to allow the application, but it is for the Court to go through the reasons given for explanation of the delay and to see whether the reasons given are convincing. 6. Normally the Court should be liberal in its approach while condoning the delay. That too particularly when the delay is caused in bringing the Legal Representatives of deceased party to a litigation, the Courts would be generally liberal in their approach. But however, it cannot be taken that the law of limitation has got no sanctity while considering such applications. It is within the parameters of the law and with due validity and sanctity to Section 5 of the Limitation Act, the Court can take a liberal approach in condonation of delay. 7. In Basawaraj and another Vs. The Special Land Acquisition Officer, reported in 2013 (4) KCCR 3430 (SC), the Hon’ble Apex Court has observed as below: “The statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to burry all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence’ or latches.” It was further observed by the Hon’ble Supreme Court in the same case that, “‘Sufficient cause’ means an adequate and enough reason which prevented him to approach the Court within limitation. In case of a party is found to be negligent, or for want of bona-fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. In case of a party is found to be negligent, or for want of bona-fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature.” 8. In the instant case, admittedly in none of these three applications under consideration i.e., I.As.1, 2 and 3 of 2017, the applicants have mentioned the date of death of respondent No.2. It is only by going through a photograph of the alleged certificate of death of respondent No.2, it can be inferred that respondent No.2 is shown to have died on 29.05.2007. A reading of the application seeking condonation of delay, which is reproduced hereinabove, clearly go to show that nowhere the applicants have stated that when they came to know about the death of 2nd respondent. In the explanation of cause for the delay, applicant is expected to primarily say as to when did he come to know about the fact (in the instant case death of respondent No.2) and then he should explain the cause for the delay in filing the application. However, in the instant case, the applicants have nowhere mentioned in their application as to when did they come to know about the death of 2nd respondent. Secondly, they have further stated that they/petitioners were not able to secure the particulars of legal representatives of deceased respondent No.2 and their addresses. When there is a delay of nearly 10 years in filing the application, for seeking setting aside the abatement, the petitioners were expected to and required to take minimum pain of explaining the efforts which they made for the said period of 3573 days in ascertaining the details of legal representatives. When there is a delay of nearly 10 years in filing the application, for seeking setting aside the abatement, the petitioners were expected to and required to take minimum pain of explaining the efforts which they made for the said period of 3573 days in ascertaining the details of legal representatives. A mere making of a vague statement or a bald statement that they were not able to secure the particulars of legal representatives is not a convincing reason to condone the delay. 9. Lastly, in the very same application, they have also stated that in the process there is some delay in filing LR application, which means, apart from not stating as to when they came to know about the death of respondent No.2 and what efforts they made in ascertaining the details of legal representatives, they were not even bothered to know the extent of delay that has been caused, in the said process of filing the application. 10. Thus, these aspects clearly go to show that the applicants in these I.As. were not diligent and were not serious about the aspect of limitation in preferring the appeal, which resulted in causing enormous delay of 3573 days. As such, the cause shown explaining the delay appears to be not bona fide and convincing. Hence, I do not find any merit in I.A.1/2017. Accordingly, I.A.1/2017 is dismissed. Consequently, I.A.2/2017 and I.A.3/2017 also do not survive for consideration, as such they also stands dismissed. In view of dismissal of I.A./2007, which does not enable the appellants to bring the legal representatives of deceased respondent No.2 on record, the main review petition, due to the absence of necessary party i.e., LRs of respondent No.2, does not survive for consideration. Accordingly, the Review Petition stands disposed off.