Karnataka High Court
Sri Babulal Jain vs Smt T Janaki Bai W/O Hanuman Singh on 1 July, 2013
Author: B.S.Patil
Bench: B.S.Patil
MFA.3305/2009
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
M.F.A.No.3305/2009 (CPC)
BETWEEN:
Sri Babulal Jain,
Aged about 66 years,
Present r/at No.414, 14th Cross,
Shastri Nagar,
Bangalore-28. ... APPELLANT
(By Sri T.Krishna,Adv. for GSV Assts.)
AND:
1. Smt.T.Janaki Bai
W/o Hanuman Singh,
r/at Suraj Nivas,
Bommasagara Village,
Chitradurga.
2. Sri Somaraj Singh
S/o late Mansingh
Aged about 69 years
r/at No.748,
West of Chord Road, II Stage,
5th Cross, Bangalore-78. ... RESPONDENTS
(R1,R2- Notice held sufficient through
Paper Publication vide Order dt.27.5.2013)
M.F.A.No.3305/2009 filed under Order 43 Rule 1(c) r/w
Sec.104 of the Code of Civil Procedure, against the order dated
6.2.2009 in Misc.No.7/2005 filed in O.S.No.5076/1987 on the
MFA.3305/2009
2
application under Order 9 Rule 7 of CPC., wherein the said
application has been dismissed and etc.
This appeal coming on for admission this day, the Court
delivered the following:
JUDGMENT
1. This miscellaneous first appeal is filed challenging the order dated 06.02.2009 passed by the learned City Civil Judge, Bangalore City, dismissing the petition filed by the plaintiff - petitioner herein under Order IX Rule 7 CPC seeking to set setting aside the order of dismissal of the suit O.S.No.5076/1987 and for restoration of the same for disposal in accordance with law.
2. Petitioner was the plaintiff in O.S.No.5076/1987. When the matter was at the stage of cross-examination and after the plaintiff - petitioner herein was cross-examined, the suit that was earlier pending in City Civil Court Hall No.16 came to be transferred to Court Hall No.28. Thereafter, as contended by the petitioner, the records of the case were missing and though he lodged a complaint before the Registrar of the City Civil Court, the records were not traced from 10.03.1999 till the end of the year 1999. According to him, he had gone to Rajasthan MFA.3305/2009 3 during the year 2000 and stayed there for about three months. Due to communication gap and as the advocate appearing for him had changed the office, he could not contact his advocate. In the year 2003-04, petitioner contacted another advocate and tried to ascertain the stage of his case. Thereafter, having obtained the certified copy of the order sheet, he came to know that the suit had been dismissed for non-prosecution. Hence, he filed the miscellaneous petition seeking for restoration of the suit.
3. The 2nd respondent appeared, filed objections and contested the petition contending inter alia that petitioner was not diligent in prosecuting the case. He denied the assertion of the petitioner that the records were missing and that the delay of five years in filing a petition for restoration was for bonafide reasons. Similar assertions were made in the application filed for condonation of delay for entertaining the miscellaneous petition filed for restoration. The Trial Court framed the following point for consideration:
"Whether the petitioner proves that he was restrained by sufficient cause to appear before the Court on 8/2/2000 the day on which MFA.3305/2009 4 O.S.5076/87 was dismissed for non- prosecution?"
4. Petitioner examined himself as P.W.1. He stated in his evidence that he was suffering from paralysis stroke and was bed ridden and therefore, he could not contact his advocate appearing for him earlier. The certified copy of the order sheet in the suit was marked as Ex.P1. After considering the evidence on record, the Court below has come to the conclusion that there was no material whatsoever placed to show that records of the suit were missing as asserted by the petitioner. The Trial Court has recorded a finding, on perusal of the order sheet in the suit that the plaintiff remained absent on 18.09.1999. Thereafter, the suit was adjourned to 12.10.1999, on that day also plaintiff remained absent. Again the case was adjourned to 10.11.1999 and to 14.12.1999. As the plaintiff was not present, the case was finally adjourned to 08.02.2000 for cross-examination of the plaintiff. Even on that day, the plaintiff remained absent. Therefore, making an observation that though sufficient opportunity was given to the plaintiff, he had remained absent and there was no representation on his behalf the suit was dismissed for non-prosecution. The Court MFA.3305/2009 5 below has found that the assertion made by the plaintiff that the records were missing and that for bonafide reasons he was unable to appear before the Court to lead evidence and later on, subject himself for cross-examination could not be believed.
5. As regards ill-health pleaded, the Trial Court has found that no documents were produced by him to establish that he had suffered paralysis or was suffering from any other illness which prevented him for appearing before the Court. It has come to the conclusion that the petitioner was negligent in prosecuting the suit and the explanation offered for the long and inordinate delay in filing the petition for restoration did not constitute sufficient cause to condone the same.
6. Learned counsel for the petitioner, placing reliance on the judgment of the Apex Court in the case of COLLECTOR, LAND ACQUISITION VS. MST. KATIJI - ILR 1987 KAR 2844 submits that a liberal view has to be taken in a matter like this, as it is always in the ends of justice to have the matter disposed of on merits, instead of terminating the proceedings for technical reason such as delay. It is his further submission that as the suit was one for declaration and possession based on title, if a lenient MFA.3305/2009 6 view is not taken in the matter, the petitioner will be deprived of his valuable property.
7. I have carefully considered the contentions taken by the petitioner in the background of the facts involved in the case and the reasons assigned by the learned Trial Judge in the impugned order. It is true, in the ends of justice, a liberal approach has to be adopted while condoning the delay as it is always advisable to have a litigation between the parties terminated on merits rather than by putting an end to the same on technical grounds including on the ground of limitation. But the fact remains that even for taking a liberal view in the matter, the party must establish that the delay is capable of being condoned as the person approaching the Court was not guilty of negligence in asserting his rights apart from making out sufficient cause. Making out sufficient cause is one thing and being guilty of negligence and of total lack of diligence in prosecuting the case is another thing. Liberal approach will come into play in examining the sufficiency or otherwise of the reasons assigned. But, such an approach cannot be adopted when there is negligence on the part of a litigant in prosecuting his case and the reasons assigned lack bonafides. MFA.3305/2009 7
8. In the instant case, the petitioner has come up with some explanation for the long and inordinate delay of five years in seeking restoration of his suit. His first explanation is that the records of the case were missing and hence he lost track of the proceedings. The second explanation is that he was suffering from illness particularly of the grave nature like paralytic stroke and was, therefore, not in a position to attend the court. Both these assertions are factually found to be wrong by the Court below as the petitioner has failed to place any material. He has not produced anything to show that the records were missing. On the other hand, the Trial Judge, on perusal of the order sheet maintained in the suit, has recorded a finding that no such loss of records was noticed in the order sheet. Petitioner has also not produced any material to show that he had lodged any complaint before the Registrar of the Trial Court complaining about the loss of the records.
9. Insofar as the illness is concerned, no document whatsoever has been produced by the plaintiff - petitioner before the Trial Court to support his assertion that he was suffering from paralysis. The said assertion has remained only a bare assertion. Therefore, the Court below has come to the MFA.3305/2009 8 conclusion that he has not only failed to explain the long and inordinate delay in filing the petition, but has been guilty of negligence in prosecuting the suit. Such long and inordinate delay cannot be condoned unmindful of the fact that during the long interregnum, the other party would have certainly altered his position and any interference at such belated stage would seriously prejudice the interest of the respondents who for no fault on their part would be made to again face the litigation.
Therefore, I do not find any illegality or perversity in the order passed by the Trial Court in dismissing the petition filed for restoration of the suit. Hence, this appeal being devoid of merits is dismissed.
Sd/-
JUDGE PKS