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2023 DIGILAW 805 (KAR)

Veerabhadrappa v. Parvathamma

2023-06-23

H.P.SANDESH

body2023
JUDGMENT 1. This appeal is filed challenging the order of dismissal dtd. 6/2/2014, passed in Misc.No.6/2013, on the file of the II Additional District, Judge, Mysore, on the ground of delay. 2. The factual matrix of the case of the petitioner/appellant is that he had suffered the judgment and decree passed in O.S.No.24/1992. Being aggrieved by the said judgment and decree, R.A.No.4/2000 was filed before the First Appellate Court and the same was dismissed for default on 4/3/2008. Being aggrieved by the order of dismissal, Misc.No.6/2013 was filed for the relief of restoration of R.A.No.4/2000 and there was a delay in filing the said petition. The First Appellate Court having recorded the evidence of the petitioner, dismissed the said petition on the ground that the delay of three years nine months has not been properly explained and no sufficient cause is placed before the Court to condone the delay. Hence, the present miscellaneous first appeal is filed before this Court. 3. The main ground urged in the appeal is that the Court below has committed an error in not condoning the delay in filing the petition. It is contended that Veerabhadrappa was suffering from cancer for more than four years and he was looking after the litigation in question and he could not meet the counsel and dismissal of the appeal for default was not known to the appellant. The said Veerabhadrappa died on account of the said disease and therefore immediately after coming to know of the dismissal of the appeal, the appellant challenged the same by filing the miscellaneous application and hence there was a delay and delay is on account of bonafide reasons and the same has not been accepted by the Trial Court. It is contended that on account of delay, merit should not be made a scapegoat. It is contended that the suit filed by the plaintiff for declaration and possession has been decreed and validity of the said decree has been challenged and the decree was stayed in R.A., but R.A. was dismissed for default and not on merits. If R.A. is restored, it will meet the ends of justice. The Court was not justified in relying upon the judgment of this Court while dismissing the petition and the said judgment is wholly inapplicable to the facts and circumstances of the case. 4. If R.A. is restored, it will meet the ends of justice. The Court was not justified in relying upon the judgment of this Court while dismissing the petition and the said judgment is wholly inapplicable to the facts and circumstances of the case. 4. The learned counsel for the appellants relied upon the judgment of this Court in the case of BASAVARAJ v. CHANDRAIAH reported in 2017 (2) KCCR 1457 , wherein this Court held that in a case of application for setting aside, an opportunity is given to the defendant to contest the suit by imposing reasonable cost and no prejudice will be caused to the plaintiff and substantial rights of parties should not be deprived on technicalities, though the defendant should have been more vigilant and order rejecting the same is defeating the very substantial justice. 5. Though respondent Nos.2, 3 and 4(A to D) are represented through the counsel, the counsel has not argued the matter inspite of opportunity is given. Hence, taken as no arguments. 6. Having heard the learned counsel for the appellant, the point that arise for the consideration of this Court is: Whether the order impugned dismissing Misc.No.6/2013 requires interference for restoration of RA? 7. Having considered the material available on record, O.S.No.24/1992 was filed for the relief of declaration and possession and the same was decreed on 4/12/1999 after seven years. It is important to note that the judgment and decree has been challenged before the First Appellate Court in R.A.No.4/2000 and the appeal was filed on 16/1/2000 and there was a delay in filing the R.A. and also an order has been granted staying the judgment and decree of the Trial Court by the First Appellate Court. It is important to note that when the suit for declaration and possession was decreed, the appeal was pending from 2000 to 2008. On perusal of the entire order sheet, it discloses that the case was dismissed on 4/3/2008 and the case was set down for arguments on several occasions and the matter was adjourned at the request of the learned counsel for the appellant before the First Appellate Court and ultimately it was dismissed on 4/3/2008. It is important to note that Misc. It is important to note that Misc. petition was filed on 12/1/2013 almost after three years nine months and the reason given for delay is that the appellant was suffering from cancer and hence, he could not meet the advocate. 8. In support of the contention, the petitioner examined one witness as P.W.1 and got marked the documents at Exs.P.1 to 6. Ex.P.1 is the certified copy of the order sheet in R.A.No.4/2000, Ex.P.2 is the medical certificate issued by Kidwai Memorial Institute of Oncology, Ex.P.3 is the prescription slip, Ex.P.4 is the treatment card, Ex.P.5 is another prescription slip and hence, it is clear that Exs.P.2 to 5 are pertaining to the medical treatment. Ex.P.6 is the death certificate of the said Veerabhadrappa. It is important to note that the suit was decreed on 4/12/1999 and the appeal was filed on 16/1/2000 and the matter was pending for a period of eight years and ultimately it was dismissed on 4/3/2008. It is important to note that it is pleaded that the petitioner came to know about the dismissal of the appeal on 4/12/2011 and he was able to contact his counsel upto 5/1/2012 and P.W.1 is none other than the wife of Veerabhadrappa. The First Appellate Court taken note of the document of Ex.P.2, which discloses the date of registration for treatment dtd. 12/9/2011 i.e., for radiotherapy on 09. 11.2011 and prior to this document dtd. 12/9/2011, no documents are produced. The Court also taken note of the document of Ex.R.2, which is the Execution petition No.314/2010 and after the dismissal of the appeal, an execution petition was filed seeking the possession. Ex.R.3 clearly depicts that notice was issued in execution petition and he appeared before the Court in execution petition on 26/7/2010, but Misc. petition was filed in 2012, even after having the knowledge. The very contention that he came to know about the dismissal of the appeal on 4/12/2011 cannot be accepted, since in the execution petition he appeared before the Court and the Court comes to the conclusion that no sufficient cause is made out by the petitioner in order to show to the Court what prevented him in approaching the Court and hence comes to the conclusion that Exs.P.3 to 5 will not come to the aid of the petitioner since there was a delay of three years nine months in filing the Misc. petition. petition. Even though he was aware of the execution petition was filed wherein sought for possession consequent upon the decree and dismissal of the appeal, no Misc. petition was filed and hence the Trial Court not accepted the reason given by the petitioner. 9. The Court also taken note of the principles laid down in the judgment in the case of BASAVARAJU AND ANOTHER v. SPL. ACQUISITION OFFICER reported in 2013 (4) KCCR 3430 (SC), wherein the Court taken note of the fact that if material is found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No doubt, the learned counsel for the appellant relied upon the judgment of this Court reported in 2017 (2) KCCR 1457 (supra), wherein it is held that substantial justice should not be pitted against the technicalities and there is no dispute with regard to the said principle. But in the case on hand, the petitioner was inactive even though he was having knowledge about the dismissal of the appeal and execution petition was filed, he did not file the Misc. petition for restoration of the appeal immediately and only filed after taking the possession. Having taken note of both oral and documentary evidence placed on record, the First Appellate Court dismissed Misc.No.6/2012 having considered the fact that there is a delay of three years nine months. Apart from that, the order sheet of R.A.No.4/2000 discloses that though appeal was filed in 2000, the same was dismissed in 2008 and several opportunities was given to argue the case and the counsel did not argue the case. When there is an inordinate delay and not diligent in prosecuting the case, the question of exercising the discretion does not arise and hence I do not find any error committed by the First Appellate Court in dismissing the application filed under Sec. 5 of the Limitation Act and no ground was made out to condone the delay. Unless sufficient cause is shown to condone the delay, the question of condoning the same does not arise since the documents produced by the appellant does not inspire the confidence of the Court. Hence, I do not find any merit in the appeal to reverse the finding of the Trial Court. Hence, I answer the point for consideration in the negative. 10. Hence, I do not find any merit in the appeal to reverse the finding of the Trial Court. Hence, I answer the point for consideration in the negative. 10. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.