2015 Supreme(Kar) 1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ARAVIND KUMAR, J.
MR. M RATHNAVARMA PADIVAL - PETITIONER
Versus
MRS. M SHARADA R HEGDE - RESPONDENTS
CIVIL REVISION PETITION NO.318/2012
Decided on : 05.01.2015

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 96(2) r/w Order 43, Rule 1(d): [Aravind Kumar, J] Appeal - Maintainability - Suppression of fact as to filing of Miscellaneous Petition under Order 9, Rule 13 CPC against ex parte decree and dismissal of - Order in Miscellaneous petition was not challenged - Held, A person aggrieved by an order passed by the Court dismissing the petition filed under Order 9, Rule 13 CPC would be entitled to challenge the same under Section 96(2) CPC read with Order 43, Rule 1(d) CPC. There cannot be any dispute with regard to this proposition of law. In the instant case, undisputedly, after dismissal of Miscellaneous Petition defendants did not file such an appeal. They also did not take any steps for restoration of the Miscellaneous Petition. In other words, the order of dismissal of Miscellaneous Petition became final. The appeal challenging the ex parte decree is maintainable.

       CODE OF CIVIL PROCEDURE, 1908 - Section 115, Proviso: [Aravind Kumar, J] Revision Petition against order condoning delay - Maintainability - Condonation of delay of 11 years, 8 months and 27 days in filing appeal under Section 96 of CPC - Held, if the impugned order is of interim in nature or does not finally decide the lis, then, revision would not be maintainable and it would not be amenable to revisional jurisdiction. In other words, revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. In the event of the said application had been dismissed, the lis between the parties would have come to end. In other words, if the order passed by the lower Appellate Court allowing the application for condonation of delay which is under challenge in this revision petition is accepted or in other words, order of the lower Appellate Court is set aside, the proceedings before the lower appellate Court would stand finally disposed of, as contemplated under proviso to Section 115 CPC.

       LIMITATION ACT, 1963 - Section 5: [Aravind Kumar, J] Condonation of delay of 11 years, 8 months and 27 days in filing appeal under Section 96 of CPC - Held, It is not the length of delay which will have to be considered but the cause shown namely, the existence of sufficient cause for not approaching the Court within prescribed time. If in a given case, the cause shown is not sufficient or in other words, it is not within proximity of truth or contrary to facts then it would, amount to insufficient cause. In those circumstances, Court would be slow in condoning delay. Likewise, when delay is inordinate and unexplained and reasons given in the application or the affidavit supporting such application as the case may be, is fraught with vagueness, or incorrect facts or facts contrary to record is pleaded, even then, Courts would be slow to condone the delay. Proof of sufficient causes is a condition precedent for the exercise of discretion and only on establishing the said cause being sufficient, the Court will examine as to whether the delay should be condoned. In the event of applicant failing in this initial test, they cannot be heard to contend that still delay is to be condoned in the interest of substantial justice… On the ground of delay, the larger relief to which the litigant may be entitled to cannot be deprived of. Delay defeats equity. Sufficient cause does not mean every day’s delay has to be explained. On an overall reading of the cause shown would inspire confidence in the mind of Court to accept it as genuine and the same to be in the proximity of truth, it would be sufficient cause to condone the delay as otherwise, not. At the same time, as already noticed herein above, all discretionary powers will have to be exercised in accordance with law. Cause shown for delay is not only bereft of material particulars but is also vague, vagueness could be. In fact, there is suppression of material facts by the defendants. Appellate Court was not justified in condoning the delay. Revision Petition allowed. Impugned order condoning delay was set aside. IA for condonation dismissed.