Karnataka High Court
Mr. Bernard Vikram Thumboo Chetty vs Mr.John Ravi Thumboo Chetty on 27 May, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF MAY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.2905/2013 (GM-CPC)
BETWEEN:
MR. BERNARD VIKRAM THUMBOO CHETTY
S/O LATE FRANCIS THUMBOO CHETTY
AGED ABOUT 61 YEARS
R/AT NO.16, PROMENADE ROAD
FRAZER TOWN,
BANGALORE-560 005.
... PETITIONER
(BY SRI ADITYA SONDHI, ADV.)
AND:
1. MR. JOHN RAVI THUMBOO CHETTY
S/O. LATE FRANCIS THUMBOO CHETTY
AGED ABOUT 61 YEARS
R/AT NO.17, PROMENADE ROAD
FRAZER TOWN,
BANGALORE-560 005.
2. MRS. MARY GEETHA THOMAS
W/O. MR. JOSEPH THOMAS
AGED ABOUT 58 YEARS.
3. MS. PHILOMENA CHITRA
D/O. LATE FRANCIS THUMBOO CHETTY
AGED ABOUT 60 YEARS.
RESPONDENTS NOS. 2 AND 3 BOTH ARE
REPRESENTED BY MR. JOHN RAVI THUMBOO CHETTY
2
RESIDING AT NO.17, PROMENADE ROAD
FRAZER TOWN,
BANGALORE-560 005.
... RESPONDENTS
(BY SRI ASHOK B. PATIL, ADV. FOR C/R1)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 27.11.2012 DISMISSING
I.A.NO.I IN MISC.NO.863/2011 ON THE FILE OF THE XVIII
ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH 10) VIDE
ANNEXURE-K AND FURTHER BE PLEASED TO ALLOW THE
SAID APPLICATION AS WELL AS THE MISC. NO.863/2011 AT
ANNEXURES-E AND G.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner-plaintiff filed O.S.No.9940/2006 in the City Civil Court, Bangalore against the respondents- defendants, to pass a decree for partition and put him in separate possession of 1/4th share in the plaint schedule properties and for grant of consequential reliefs. The respondents filed written statement and contested the suit. Based on the pleadings, issues were raised on 04.07.2011. As the plaintiff and his Counsel did not appear on 08.09.2011, suit was dismissed for non-prosecution. Contending that the said fact came to 3 his knowledge on 18.11.2011, in P&SC No.15055/2006, the petitioner filed on 06.12.2011 Misc.Case No.863/2011, under Order 9 Rule 9 r/w 151 CPC, to recall the order dated 08.09.2011 dismissing O.S.No.9940/2006 and for its restoration. Since there was delay of 68 days in filing of Misc.Case No.863/2011, to condone the delay, IA.No.1 was filed under Section 5 of the Limitation Act. Respondents contested IA.No.1 and the Misc.Case by filing statement of objections. The trial Court by an order dated 27.11.2011 dismissed IA.No.1 and as a consequence has dismissed the Misc.Case as barred by limitation. Feeling aggrieved, the plaintiff-petitioner has filed this writ petition.
2. Mr.Adithya Sondhi, learned Advocate for the petitioner contended that though petitioner has shown sufficient cause for the delay in filing of the Misc.Case and the delay being bonafide and unintentional, dismissal of IA.No.1 being on baseless grounds, 4 impugned order is unsustainable and may be quashed, as otherwise, there would be miscarriage of justice and petitioner's right to rightful share in the immovable property would be lost. He submitted that the findings recorded in the impugned order being perverse and illegal, the impugned order warrants interference, more particularly, in the absence of any negligence or deliberate inaction on the part of the petitioner having been established by the respondents. He submitted that on account of a bonafide mistake on the part of a junior Advocate in noting a wrong hearing date, the petitioner should not be made to suffer. He placed reliance on a judgment dated 09.06.2011 passed in MFA.No.11096/2008.
3. Mr. Ashok B.Patil, learned Advocate for the respondents, on the other hand, by placing reliance on the decision in the case of RADHEY SHYAM AND ANOTHER vs. CHHABI NATH AND OTHERS, (2009) 5 SCC 616, contended that in view of correct appreciation of 5 the record of the case and the finding of fact recorded by the learned Trial Judge, writ petition under Article 227 is not maintainable. He submitted that in the facts and circumstances of the case, sufficient cause having not been shown, the trial Court is justified in dismissing IA.No.1 and consequently rejecting the Misc.Case as barred by limitation.
4. Perused the writ record. The trial Court has dismissed IA.No.1 mainly on account of non-mentioning and non-examination of the junior Advocate of the plaintiff who had taken the hearing date of the suit as 15.12.2011 instead of 08.09.2011. Even after recording a finding that, "of course, the evidence given by PW.1 is in conformity with what is mentioned in the application, but it cannot be taken on its face value and accepted, because it is just a reproduction of what is contained in the application", the evidence of PW.1 was held as self interested or self-serving testimony and the delay was 6 not condoned and the petition was dismissed as barred by limitation.
5. In construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the Section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay, as is clear from a reading of the said provision, since the word used therein is "may".
6. In the case of RAMLAL vs. REWA COALFIELDS LTD., AIR 1962 SC 361, dealing with the scope of Section 5 of the Limitation Act, Apex Court has held as follows:
'6. Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause 'within such period'? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial 7 Commissioner against the appellant. He has held that 'within such period' in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that 'within such period' means 'the period of delay between the last day for filing the appeal and the date on which the appeal was actually filed' he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is 'a sufficient cause' in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words 'within such period' is erroneous.
7. ........ "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood;
the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."' 8
7. In the case of VEDABAI vs. SHANTARAM BABURAO PATIL, (2001) 9 SCC 106, Apex Court has held as follows:
'5. In exercising discretion under Section 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case, no such consideration may arise and such a case deserves a liberal approach. No hard-and-fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Additional District Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under Section 5 of the Limitation Act is exercised by the Additional District Judge in contravention of the law laid down by this Court, that the expression 'sufficient cause' should receive liberal construction, in catena of decisions (see State of W.B. vs. Administrator, Howrah Municipality and Sandhya Rani Sarkar vs. Sudha Rani Debi). The High Court in exercising its jurisdiction 9 under Section 115 C.P.C. failed to correct the jurisdictional error of the Appellant Court.'
8. In the case of STATE OF NAGALAND vs. LIPOK AO AND OTHERS, (2005) 3 SCC 752, Apex Court has held as follows:
'8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient.'
9. It is trite that the expression "sufficient cause"
used in Section 5 of the Limitation Act, 1963 is elastic enough to enable the Court to apply the law in a 10 meaningful manner to advance the cause of justice.
The liberal approach should be adopted in such matters, so that substantive rights of the parties are not defeated merely because of delay, which becomes evident from the ratio of the decision in the case of COLLECTOR (LA) vs. KATIJI, (1987) 2 SCC 107, wherein it has been held that liberal approach is required to be adopted on the following principles:
(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.
(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 11 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.
10. That in view of the separate counters filed to the Misc.Case and IA.No.1, the petitioner has got himself examined as PW.1. Cross-examination of PW.1 does not show that there was any deliberate negligence on the part of the petitioner. The suit is one for partition and allotment of 1/4th separate share. The parties are closely related to each other. By remaining absent on 08.09.2011 and by filing the Misc.Case belatedly, the petitioner-plaintiff did not gain in any manner. Nothing has been brought on record by the respondents by way of rebuttal evidence, showing that 12 PW.1 was aware of the dismissal of suit earlier than 18.11.2011 and still did not take required steps immediately and the delay of 68 days in filing the Misc.Case was deliberate and not bonafide. There is no evidence to hold that the delay is malafide or that there was culpable negligence on the part of the petitioner.
11. In MFA.No.11096/2008 decided on 09.06.2011, in identical circumstances, it was held as follows:
'10. The delay in filing Misc.Petition 357/2001 is not deliberate. The appellant has not gained by a short delay in filing the restoration petition. The respondents have not established any malafides on the part of the appellant in filing the restoration petition belatedly. The cause shown for the delay constitutes sufficient cause. It is trite that, technicalities should be ignored and substantial justice should be done, if necessary by compensating the other side with costs. The Trial Court has acted vice-versa. Under the circumstances, the impugned order is unsustainable.'
12. In the case of RAFIQ AND ANOTHER vs. MUNSHILAL AND ANOTHER, (1981) 2 SCC 788, the Court 13 had disposed of an appeal preferred by the appellant in the absence of his Advocate and when the appellant became aware of the fact that his appeal has been disposed of in the absence of his Advocate, he moved an application to recall the order and permit him to participate in the hearing of the appeal. The application having been rejected on the ground that there is no satisfactory explanation for the slackness on the part of the learned Advocate who was requested to file the application, Apex Court has held as follows:
'3. ........However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.'
13. In the case of MUNICIPAL CORPORATION, GWALIOR vs. RAMCHARAN (DEAD) BY LRS. AND ANOTHERS, (2002) 4 SCC 458, where delay of 39 days had occurred 14 due to mistake in noting the date of first appeal hearing in the Counsels Court Case Diary and has resulted in non appearance of Counsel in the first appeal plus belated knowledge of judgment in the said appeal and when an application for condonation of delay was filed, the Court having dismissed the application, when challenged, Apex Court has held as follows:
'3. .............On the totality of the facts and circumstances of the case, we are of the opinion that the High Court ought to have taken a liberal, and not a rigid and too technical a view of the issue before it and should have condoned the delay in filing the appeal and concentrated on examining whether the appeal raised any substantial question of law worth being heard by the High Court. In our opinion, a sufficient cause for condoning the delay in filing the appeal before the High Court is made out.'
14. Learned Trial Judge though has held that the evidence of PW.1 is in conformity with what is stated in the application, despite there being no rebuttal evidence by the respondents, disbelieved the evidence of PW.1, without any lawful basis. The finding recorded on 15 IA.No.1 by the learned Trial Judge is perverse and illegal. Sri. Ashok B.Patil, is unable to point out any circumstance on account of which the petitioner did not file the Misc.Case within the permitted period and having been benefited by the delay. In the circumstances, in my opinion, the ratio of decision in the case of Radhey Shyam (supra) has no application.
15. The impugned order is a composite one. While dismissing IA.No.1, Misc. Petition has been rejected as barred by limitation. It is the order passed on IA.No.1 which has been questioned in this writ petition. No finding as such has been recorded on the merits of the Misc.Case. Only on account of the finding recorded on IA.No.1, Misc.Petition has been dismissed as barred by limitation. Since the order passed on IA.No.1 by the trial Court is vitiated and cannot be sustained, it necessarily follows that the Misc.Case is required to be decided by the trial Court in accordance with law.
However, the petitioner should pay the costs to the 16 respondents and that there is also a need to issue a direction to decide the Misc.Case with expedition.
In the circumstances, writ petition is allowed and the impugned order is quashed. IA.No.1 filed in Misc.Case No.863/2011 on the file of the City Civil Court, Bangalore stands allowed, subject to the petitioner paying cost of Rs.5,000/- to the respondents in the trial Court, on the next hearing date. In order to expedite the decision of the Misc.Case, both the parties are directed to appear before the trial Court on 15.06.2013 and receive further orders. The trial Court is directed to decide the Misc.Case expeditiously and within a period of three months from the date of appearance of the parties.
Ordered accordingly.
Sd/-
JUDGE ca