Karnataka High Court
Smt Dhanalakshmi vs Sri Srinivasan G L on 15 December, 2016
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2016
BEFORE
THE HON'BLE MR. JUSTICE K. N. PHANEENDRA
M.F.A NO. 4146/2016 (CPC)
BETWEEN
SMT DHANALAKSHMI,
W/O SRI T. NAGARAJAPPA,
MAJOR, R/AT NO.130-B,
KEMPEGOWDA LAYOUT,
PEENYA, II STAGE,
BANGALORE - 560 058. ... APPELLANT
(BY SRI C. M. NAGABUSHANA, ADVOCATE)
AND
1. SRI SRINIVASAN G. L.,
S/O LATE G. R. LAKSHMANAN,
AGED ABOUT 56 YEARS,
R/AT NO.12G, JARCY CITY,
N.J.07302, UNITED STATES OF
AMERICA, PRESENTLY AT
ESWARAN KOIL STREET,
GOBICHETTYAPALYAM,
ERODE, TAMILNADU.
2. SRI G. L. PRAKASH,
S/O LATE G. R. LAKSHMANAN,
AGED ABOUT 43 YEARS,
R/AT NO.133, OLD NO.90,
8TH CROSS DOWN,
MALLESWARAM,
BANGALORE - 560 003. ... RESPONDENTS
(BY SRI H. C. SHIVARAMU, ADV. FOR C/R-1.
NOTICE TO R-2 D/W V.O.D. 09.08.2016.)
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THIS MFA IS FILED U/O 43 RULE 1(d) OF THE CPC,
AGAINST THE ORDER DATED 16.04.2016 PASSED ON
MIS.NO.843/12 ON THE FILE OF THE 3RD ADDITIONAL
CITY CIVIL & SESSIONS JUDGE, BENGALURU,
DISMISSING IA NO.1 FILED U/S.5 OF THE LIMITATION
ACT.
THIS MFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.12.2016, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE
K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the order passed by the III Addl. City Civil & Sessions Judge at Bengaluru City (CCH-25) dated 16.4.2006 in Misc. No.843/2012 in dismissing the petition filed under Order IX Rule 13 read with Section 151 of CPC which was filed for setting aside the exparte judgment and decree passed in OS No.3930/2011 on 5.4.2012.
2. I have heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents. I have carefully perused the order impugned and also the other documents produced before the Court.
3. The factual matrix that emanate from the records are that:
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The first respondent herein has filed a suit in OS No.3930/2011 for declaration and cancellation of the sale deed alleged to have been executed by respondent No.2 in favour of the first respondent herein. The suit summons were ordered to be issued to the respondents in the said case. The appellant is the first defendant and second respondent is the second defendant in the said suit and first respondent is the plaintiff. After receiving the summons, it is stated that the appellant has engaged a counsel by name Sri Sanjay Krishnamurthy by executing a vakalath and entrusting the case to him. But the said Advocate has not appeared before the Court and contested the proceedings on behalf of the appellant. The suit came to be decreed exparte and execution was sued out in Execution Petition No.2560/2012. When the appellant has received the notice in the Execution Petition, she was taken aback and immediately she contacted her Advocate Sri Sanjay Krishnamurthy and in fact, he told her that he did not appear for her and he returned the vakalath to her with NOC. Then only she came to know about the exparte order passed against her and thereafter she filed a Misc. 4 Petition in No.843/2012 seeking indulgence of the Court to set aside the exparte judgment and decree by permitting her to contest the suit on merits.
4. The said Misc. Petition was seriously contested by the other side i.e., particularly the respondent No.1 herein specifically contending that, he has filed a suit against the appellant and respondent No.2 on the ground that both of them have created documents like GPA and bogus sale deed in order to cheat the plaintiff. Therefore, after ascertaining the bogusness and forged documents, he has filed the suit with necessary documents which show that the GPA and the sale deeds are actually bogus documents. He has also filed a private complaint against the defendants and the same is pending investigation and in the said case, the appellant herein has obtained an anticipatory bail. Even before the Misc. Court in Misc. No.843/2012, it is contended that the alleged Advocate by name Sri Sanjay Krishnamurthy is a fictitious person not in existence and also that second respondent Sri G.L. Prakash is nowhere related to the first respondent, he is also a fictitious person. Therefore, the first respondent 5 contended that, the Appellant has not even made out any genuine reasons for to allow the Misc. Petition. Therefore, he sought for rejection of the application.
5. On the basis of the above pleadings of the parties, the Court below has framed the following points for consideration:
(1) Whether the petitioner has shown sufficient cause to condone the delay.
(2) Whether the petitioner has shown that she was prevented by sufficient cause in appearing and contesting the said suit? (3) What order?
Answering both the points in the negative, the trial Court has dismissed the said application.
6. The learned counsel for the appellants strenuously contended that the documents which are produced before this Court under IA No2/2016 under Order 41 Rule 27 of C.P.C. could not be produced before the Misc. Court as he has obtained some of the documents subsequently. Those documents are very relevant to show 6 that she has actually engaged the counsel Sanjay Krishna Murthy to defend her case before the trial Court and other documents i.e., the petition filed in C.Misc. No.4007/2011, wherein anticipatory bail petition was filed by the same Advocate and the certified copy of the vakalath in OS No.3930/2011 and complaint filed against Sri Sanjay Krishna Murthy, in the Bar Council and other documents produced are all necessary for the purpose of proving the genuine reasons for to set aside the exparte judgment and decree.
7. When additional documents have been produced, after hearing the merits of the case, if the Court comes to the conclusion that those documents are necessary to be allowed to be produced, in that event, the Appellate Court normally should not venture upon to give any finding on merits of the case. However, only guidelines can be issued to the trial Court in order to how the limitation applications have to be considered by the courts.
8. The learned counsel for the respondent has strenuously contended that the plaintiff has proved his 7 case before the trial Court by producing oral and documentary evidence, the documents established the fact that the defendants have colluded together, concocted certain documents to defeat the rights of the plaintiffs. He also contends that the defendant No.2 is a fictitious person who is not in existence in whose favour it is alleged that the plaintiff has executed a GPA. He further argues that the trial Court order discloses that the said GPA has proved to be a concocted document. Therefore, he contends that when prima facie it is established that the defendants have created and concocted documents, there is no necessity of providing opportunity to them to contest the suit. But, I do not want to express any of my opinion with regard to this particular aspect because this Court is of the opinion that the documents produced by the appellant herein whether can be allowed to be produced before the Court is the question to be considered by this Court primarily and if this Court is of the opinion, that those documents are necessary for proper adjudication of the rights of the parties, then the Court should not venture upon to give 8 any finding on merits. In this background, I would like to refer the documents produced before this Court.
9. List of documents produced along with IA No.2/2016 filed under Order 41 Rule 27 read with Section 151 of CPC discloses that the appellant wants to produce documents which are narrated hereunder:
(1) Certified copy of petition Memorandum in C.Misc.4007/2011.
(2) Certified copy of vakalath filed by Sanjay Krishna Murthy Advocate in C.Misc.
4007/2011.
(3) Certified copy of NOC vakalath in OS No.3930/2011.
(4) True copy complaint filed against Sanjay Krishna Murthy in Bar Council of Karnataka.
(5) Certified copy of Petition Memorandum in Misc. Petition No.734/2012.
(6) Certified copy of IA, for stay filed in Misc. Pet. No.734/2012 (7) Certified copy of vakalath in Misc. Petition No.734/2012 9 (8) Certified copy of order sheet in Misc. Petition No.734/2012 (9) Certified copy of Memo of undertaking filed in Ex.No.2560/2012.
(10) Certified copy of Memo file for deleting judgment debtor No.1 in Ex.
No.2560/2012.
In order to show that he has engaged a counsel Sri Sanjay Krishnamurthy, Advocate to contest the suit on behalf of the appellant. In order to prove the efforts made by the defendant to contest the suit and thereafter action taken by the appellant to show that there are reasonable and sufficient reasons in filing the petition for setting aside the exparte decree in a delayed manner.
10. These documents may show some light with regard to the arguments addressed by the learned counsel. It is stated in the affidavit that he has obtained the certified copy of the above suit documents which are available in the suit itself. Subsequently, after the decree being passed and that too after she received the notice in the Execution proceedings. Therefore, these documents 10 were not available to the defendant at the time of filing the petition and it is also stated that it is also submitted by the learned counsel that in order to disprove the allegations made by the respondent that the said Sanjay Krishna Murthy, Advocate is a fictitious person, he would like to examine the said person also before the trial Court. Therefore, he needs one more opportunity may be provided to produce the documents before the trial Court in Misc. No.843/2012. Hence, I am of the opinion, that when the substantial rights of the parties are involved, in such circumstances the Court should give fullest opportunity to both the parties to get their rights agitated in a full fledged manner so that they need not be drawn to some other litigation. Therefore, in my opinion, the application deserves to be allowed.
11. The learned Trial Judge has in fact has considered the conduct of appellant in a very serious manner in rejecting the Misc. Petition relying upon many number of decisions of the Supreme Court. 11
12. I have carefully gone through those decisions referred to in the judgment of the trial Court. Ultimately, the sum and substance of the rulings cited and even considering the main object of condoning the delay has to be taken into consideration by the courts. Of course, the Courts should be very liberal in condoning the delay. On the other hand, the Court also should see the conduct of the parties, if the conduct of the parties is so reckless, in such circumstances, the Court may consider whether such delay can be condoned or not.
13. In this regard, it is to be borne in mind that in every case of delay, there can be some lapses on the part of the litigant concerned, but whether that alone is sufficient to turn down his plea and to shut the door of the courts permanently against them is to be looked into. If the explanation does not smack of malafides nor is it put forth as a part of dilatory strategy, then only the Court must show utmost consideration to the suitor to condone the delay. Otherwise, the courts should be liberal in condoning the delay.
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14. It is also to be borne in mind the sum and substance of the guidelines issued by the Hon'ble Apex Court in various decisions to the effect that -
"if there is a long delay or a short delay, acceptability of the explanation for the delay is only the relevant criteria and not the length of the appeal. In condoning the delay in filing the appeal or petition, the expression 'sufficient cause' should be construed liberal as the justice should not be lost in technicalities."
Even though a liberal approach has to be given, if it is found that the party with all his sincerity pursuing his case, but when the conduct of the applicant shows that he deliberately, intentionally and knowingly has not pursued the Court proceedings and no sufficient cause is shown, then the Court has to strike a balance between the two. It should also be borne in mind that ordinarily a litigant does not stand to the benefit by resorting to delay. Therefore, whether the delay in filing the petition, the petitioner would be benefited in any manner or who will be the looser has to be taken into consideration in condoning the delay. Therefore, each case will have to be considered on the 13 particularities of its own special facts. However, the expression 'sufficient cause' must receive a liberal construction in order to advance substantial justice the general rule is to condone delay and exception is to reject the same.
15. In view of the above said facts and circumstances of the case, in my opinion, an opportunity should be given to the appellant herein to produce the documents sought to be produced under Order 41 Rule 27 of CPC before the trial Court in the Misc. proceedings. In such an eventuality, the trial Court has to provide opportunity to both the parties and thereafter consider the delay application under the guidelines noted above and to dispose of the case in accordance with law. Therefore, in view of the above, I do not want to express anything on the merits or demerits of the case of the parties as put forth both by the plaintiff before the trial Court. Hence, I pass the following:
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ORDER The appeal is allowed. Consequently;
(1) The order dated 16.4.2016 passed in Misc. No.843/2012 by the III Addl. City Civil Judge, Bengaluru, (CCH-25) is hereby set aside.
(2) The matter is remitted to the trial Court for fresh disposal of Mis.No.843/2012 in accordance with law.
(3) IA No.2/2016, filed under Order 41
Rule 27 of CPC for production of additional documents is hereby allowed. The documents produced along with the application are permitted to be produced before the trial Court in the above said Misc. Petition and the trial Court has to provide an opportunity to both the parties to lead any further evidence on the above said documents and to cross examine the witnesses.
(4) In the light of the observations made above, the trial Court has to dispose of the said application without being persuaded by its observation made in the earlier order.
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(5) The trial Court is also directed to dispose of the case as expeditiously as possible without un-necessary delay within three months from the date of receipt of the copy of this order.
Sd/-
JUDGE PL*