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2015 Supreme(Kar) 148
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ARAVIND KUMAR, J.
MR. M. RATHNAVARMA PADIVAL - PETITIONER
Vs.
MRS. M SHARADA R HEGDE & ORS. - RESPONDENTS
CIVIL REVISION PETITION NO.318/2012
Decided On : 5-1-2015
Advocate Appeared:
SRI. K CHANDRANATH ARIGA, ADVOCATE
SRI. R RAJAGOPALAN, ADVOCATE
The court examined the maintainability of the revision petition and the appeal filed by the defendants, and found that the lower appellate Court was not justified in condoning the delay in filing the appeal.
Headnote:
Order - Revision Petition - Section 5 of Limitation Act, 1963 - [MAINTAINABILITY OF REVISION PETITION] - [R.A. No. 75/2014] - The court examined the maintainability of the revision petition and held that it was maintainable as the order under challenge would finally dispose of the suit or other proceeding.
Fact of the Case:
Plaintiff filed a suit for permanent injunction in O.S. No. 111/1997, which was decreed on 23.07.1998. Defendants filed an appeal under Section 96 of CPC, seeking condonation of delay. The lower appellate Court allowed the application for condonation of delay, which was challenged in the revision petition.
Finding of the Court:
The court found that the revision petition was maintainable and allowed it, setting aside the order of the lower appellate Court and dismissing the application for condonation of delay, consequently dismissing the appeal.
Issues: 1) Whether the revision petition is maintainable? 2) Whether the appeal filed by the defendants was maintainable? 3) Whether the lower appellate Court was justified in condoning the delay in filing the appeal?
Ratio Decidendi: The court held that the revision petition was maintainable as the order under challenge would finally dispose of the suit or other proceeding. It also found that the appeal filed by the defendants was maintainable and that the lower appellate Court was not justified in condoning the delay in filing the appeal.
Final Decision: The revision petition was allowed, setting aside the order of the lower appellate Court and dismissing the application for condonation of delay, consequently dismissing the appeal.
I have heard the arguments of Sriyuths G. Krishnamurthy and Srivatsa, learned Senior Advocates appearing for petitioner and respondents respectively.
2. Perused the order dated 20.10.2011 passed by Sr. Civil Judge, Mangalore in allowing I.A. No. I on cost of Rs.2,000/- in unnumbered R.A.__ of 2010 (now said to have been numbered as 75/2014).
3. Facts in brief which has led to filing of this appeal are as under.
4. Plaintiff filed a suit for permanent injunction in O.S. No. 111/1997 in respect of suit schedule property against defendants. Said suit came to be decreed by judgment and decree dated 23.07.1998. Being aggrieved by said judgment and decree, an appeal came to be filed under Section 96 of CPC. Since, said appeal was belatedly filed namely, it was presented beyond the prescribed period of limitation, an application under Section 5 of the Limitation Act came to be filed seeking condonation of delay. Said application was resisted by plaintiff by filing detailed statement of objections and denying the averments made in the affidavit supporting the application for delay. It was specifically contended by plaintiff that a Misc. Petition No.17/1998 had been filed by the defendants under Order 9 Rule 13 CPC for setting same judgment and decree and said Misc. Petition though came to be dismissed, defendants by suppressing this fact had filed the appeal and as such, it was contended that it is an abuse of the process of Court. Hence, plaintiff sought for dismissal of the application filed under Section 5 of Limitation Act, 1963 and also the appeal.
5. Lower appellate Court having heard the learned Advocates appearing for parties allowed the application for condonation of delay on the ground that substantial rights of the parties cannot be deprived under the guise of technicalities. It came to be noticed by lower appellate Court that plaintiff had admitted that he was not aware that some of the respondents were residing outside India as one of the grounds to condone the delay in filing the appeal. On these grounds, interlocutory application I.A. No. I filed under Section 5 of the Limitation Act came to be allowed by Lower Appellate Court on cost of Rs. 2,000/- and Registry was directed to register the appeal by order dated 20.10.2011 which is assailed by the plaintiff in this revision petition.
6. It is the contention of Mr. G Krishnamurthy, learned Sr. Advocate appearing for plaintiff that after suit came to be decreed on 23.07.1998, a petition under Order 9 Rule 13 CPC came to be filed by the defendants on 26.08.1998 which also came to be dismissed on 12.01.2001 and by suppressing this fact, Regular Appeal came to be filed on 19.04.2010 along with an application I.A. No. I under Section 5 of Limitation Act, 1963 seeking condonation of delay of 11 years 8 months and 27 days in filing the appeal. He would also contend that appeal in question itself was not maintainable since an order of dismissal of the petition filed under Order 9 Rule 13 CPC is an appealable order under Section 96(2) read with Order 43 Rule 1(d) CPC and as such, appeal filed by defendants challenging the judgment and decree dated 23.07.2008 passed in O.S.No.111/1997 is not maintainable. He contends that present appeal as such is hit by principles of res-judicata. In support of his submission, he has relied upon following judgments:
1) AIR 2003 SC 3044 Surya Dev Rai Vs. Ram Chander Rai
2) AIR 2003 SC 2434 Shivashakthi Co. Operative Housing Society Vs. Swaraj Developers
3) ILR 2004 KAR 1594 Nagawwa Vs. Mallappa
4) 2004(1) KCCR 242 V.B. Nayak Vs. S.R. Narasimhamurty and others
5) AIR 2010 SC 3043 Balwant Singh (Dead) Vs. Jagadish Singh & Others
6) (1979) 3 SCC 745 Dalbir Singh and Others Vs. State of Punjab
7) (2012)1 MAHARASHTRA L.J. 918 Shri Nandkishor Kanhyalal Agrawal Vs. Dhule Municipal Corporation, The Administrator Dhule Municipal Corporation and Deputy Commiss
