Karnataka High Court
Shri V Selvaraj vs M/S Fiza Developers & Inter Trade ... on 24 September, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
1 W.P.No.37225 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION No.37225 OF 2014 (GM-CPC)
BETWEEN:
SHRI V.SELVARAJ
SON OF VEDAN
AGED ABOUT 62 YEARS
PROPRIETOR, M/s SUN MINERALS,
CHIKKANAYAKANAHALLI
TUMKUR DISTRICT
PIN NO.572214. ...PETITIONER
(BY SRI S.RAJENDRA, ADVOCATE)
AND:
M/s FIZA DEVELOPERS AND
INTER TRADE PRIVATE LIMITED
A COMPANY REGISTERED UNDER
THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE
AT NO.25/1, RESIDENCY ROAD,
BENGALURU - 560 025.
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI B.M.FAROOKH. ...RESPONDENT
(BY SRI T.USMAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR RECORDS IN MISC.NO.1 OF 2014 PENDING
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND
JMFC AT CHIKKANAYAKANAHALLI, SET ASIDE THE
ORDER DATED 10.01.2014 VIDE ANNEXURE-C PASSED
2 W.P.No.37225 of 2014
BY THE ADDITIONAL CIVIL JUDGE AND JMFC,
CHIKKANAYAKANAHALLI, PASSED ON I.A.NO.1 OF 2014
IN THE MISC.PETITION REGISTERED AS MISC.NO.1 OF
2014 AFTER THE SAID ORDER BY ALLOWING THIS WRIT
PETITION, AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Having heard learned counsel for the parties and having perused the material placed on record, this Court is not persuaded to consider interference in the order dated 10.01.2014 passed on I.A.No.1/2014 in Misc.No.1/2014 (relating to O.S. No.144/2006) in the Court of Additional Civil Judge, Chikkanayakanahalli, whereby the Trial Court has condoned the delay of about one month in filing the application for setting aside the order dismissing the suit for default.
Learned counsel for the defendant/petitioner has vehemently argued that the Trial Court has acted wholly illegally in condoning the delay in filing the application without even notice to the petitioner.
It is noticed that the suit in question has been filed by the respondent company seeking perpetual injunction against the defendant-petitioner. It appears that earlier, there had 3 W.P.No.37225 of 2014 been a proposition for settlement and the suit was decreed in terms of the compromise entered into between the plaintiff and the defendant through his General Power of Attorney Holder, but the said compromise was not approved by this Court and the matter was remanded for fresh disposal. The Special Leave Petition filed by the plaintiff was also dismissed by the Hon'ble Apex Court.
After remand, the plaintiff/respondent filed the applications seeking leave to amend the plaint as also for impleadment of the GPA Holder of the defendant. The said applications were rejected by the Trial Court on 19.09.2013 and 28.09.2013 and the matter was posted for evidence on 07.10.2013. It had been submitted that the plaintiff was taking steps for challenging the said orders passed on the applications, but the certified copies were not ready and, in the given set of circumstances, a request was made before the Court for adjourning the matter but the same was declined and the suit was dismissed for non-prosecution.
An application seeking to set aside the order of dismissal for non-prosecution was filed on 17.12.2013 on behalf of the plaintiff-respondent and another application 4 W.P.No.37225 of 2014 seeking to condone the delay was also filed with the affidavit of the managing director of the plaintiff company who submitted that though his advocate had prepared the draft of the application for recalling the order dated 07.10.2013, but the deponent, who had gone to his native place at Mangaluru, suffered from slipped disc and the doctor advised him rest for about three weeks and hence, he was unable to sign the papers on time.
Taking up the said application as Miscellaneous No.1 of 2014, the Trial Court took note of the reasons stated on behalf of the plaintiff-respondent and felt satisfied that it would be in the interest of justice to extend an opportunity to the plaintiff- respondent to put forth its claim; and in the event of condoning the delay, no hardship would be caused to the defendant-petitioner. The Trial Court, accordingly, allowed the application under Section 5 of the Limitation Act and while condoning the delay, directed the office to register the case and to issue notice to the defendant-petitioner.
Though it appears that the Trial Court did not issue notice to the petitioner before condoning delay, but in the ultimate analysis, by way of the order impugned, the 5 W.P.No.37225 of 2014 application seeking setting aside of the order dismissing the suit for non-prosecution has been set down for consideration, with the Trial Court finding it just and proper to condone the delay of about one month with reference to the illness related with slipped disc, as stated by the authorized representative of the plaintiff-respondent.
Though adherence to the principles of natural justice and extending an opportunity of hearing to a party to the litigation for determination of any question involved in the matter is the rule, but in every case of a default in that regard, it may not be necessary for this Court to consider interference under Article 227 of the Constitution of India, particularly when interest of justice is served and no case of prejudice and gross injustice is made out.
It remains trite that Courts of law would prefer deciding a case on its merits and not on technicalities. As noticed from the submissions made in the application seeking restoration, there had been several litigations between the parties and the present suit itself was earlier allegedly compromised, but the compromise proposition was not approved by this Court; and the matter was remanded for trial. In the given set of facts 6 W.P.No.37225 of 2014 and circumstances, it is difficult to say that the plaintiff- respondent would have intentionally caused delay in filing the application for setting aside the order of dismissal for non- prosecution. Of course, this Court is not making any comment on the said application for setting aside dismissal of the suit, that shall have to be considered on its own merits, but in the totality of the circumstances, the Trial Court appears to have taken a practical view of the matter so as to consider the application on merits, rather than putting the matter in the process of consideration of the application for condonation of a short delay of one month.
Hence, the order impugned condoning the delay in filing, even when passed without notice, cannot be said to be leading to any such failure of justice and prejudice to the defendant-petitioner as to call for interference by this Court under Article 227 of the Constitution of India.
This Court would hasten to observe that the order impugned is not being interfered with under Article 227 in the singular facts and circumstances of the case, and else, ordinarily it is expected that such orders are passed by the 7 W.P.No.37225 of 2014 Trial Court only after due opportunity of hearing to the opposite party/parties.
With the observations foregoing, exercise of writ jurisdiction under Article 227 of the Constitution of India is declined in this matter.
Accordingly, the petition stands dismissed.
Sd/-
CHIEF JUSTICE dh