Karnataka High Court
M.R. Umesh vs H.K. Shivakumar @ B.K Shivakumar on 12 December, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:45068
WP No. 50892 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 50892 OF 2014 (GM-CPC)
BETWEEN:
M.R. UMESH
S/O M V RUDRAPPA
AGED ABOUT 48 YEARS
RESIDING AT VIJAYNAGARA MAIN ROAD
HOSADURGA TOWN
CHITRADURGA DISTRICT 577 527.
...PETITIONER
(BY SRI. G. RAVISHANAKAR, ADVOCATE)
AND:
H.K. SHIVAKUMAR @ B.K SHIVAKUMAR
(BRAHMA KUMAR SHIVAKUMAR0
@ H K SHIVAKUMARASWAMY
S/O KALAPPA
Digitally AGED ABOUT 44 YEAS
signed by
NARASIMHA RESIDENT OF KALLESHWAR EXTENSION
MURTHY HOSADURGA TOWN CHITRADURGA
VANAMALA
Location: AND
HIGH
COURT OF
KARNATAKA AT PRESENT CLAIM TO BE RESIDING AT
PANDAV BHAVAN
BRAHMA KUMARI' S WORLD
HEAD OFFICE
MOUNT ABU
RAJASTHANA STATE -307501.
...RESPONDENT
(BY SRI. M SHIVAPRAKASH, ADVOCATE)
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NC: 2023:KHC:45068
WP No. 50892 of 2014
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 2.8.14, PASSED BY THE COURT OF
THE ITINERARY SR. CIVIL JUDGE AT HOSADURGA ON
IA.NO.I IN MISC.NO.9/13, PRODUCED AS ANN-F BY
HOLDING THAT THE MISCELLANEOUS PET.NO.9/13, IS
BARRED BY LIMITATION & THE COURT HAS NO
JURISDICTION TO ENTERTAIN SUCH PETITION IF IT IS
NOT ACCOMPANIED BY THE APPLICATION FOR
CONDONATION OF DELAY.
THIS PETITION, COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is the respondent in Misc. No.9/2003 on the file of the Senior Civil Judge, Hosadurga, [an itinerate Court and referred to as 'the civil Court']. The petitioner is aggrieved by the civil Court's order dated 02.08.2014, and the civil Court by this order has allowed the respondent's application [I.A. No.1] under Section 5 of the Limitation Act, 1963 condoning the asserted delay of three months and twelve days in filing the petition. -3-
NC: 2023:KHC:45068 WP No. 50892 of 2014
2. The petitioner has filed the suit in O.S. No.138/1998 on the file of the Senior Civil Judge, Chitradurga for recovery of money relying upon 'On- demand Promissory Note', and this suit with the establishment of the civil Court is transferred to Holalkere and is assigned new number in O.S. No.48/2001. The civil Court has decreed the suit ex parte on 08.01.2003. The respondent has filed Misc. No.9/2003 for setting aside the ex parte Judgment dated 08.01.2003 in O.S. No.48/2001 contending that because of the marital discord he was emotionally disturbed and therefore visited the Brahmakumari Samaja at Hubballi and stayed there for some time before shifting to Brahmakumari Samaja at Mount Abu, Rajasthan.
3. The respondent has also contended that during his stay with Brahmakumari Samaja, Mount Abu, Rajasthan, he had severed all his relationship with his family members and only when one of the -4- NC: 2023:KHC:45068 WP No. 50892 of 2014 acquaintances shared his brother's phone number and asked him to contact, he contacted his brother and sister [H K Manjunatha and Sudhamani respectively]; that he met his sister at Bellary in the month of February 2013 when he learnt about the ex parte Judgment; that he had to return to Mount Abu, Rajasthan because of his health condition and he was hospitalized between 05.04.2013 and 10.06.2013 and he could not file the petition before 08.04.2013 and as such there is delay.
4. The respondent has tendered evidence, and he has also been cross examined. The petitioner has not tendered any contra evidence. The civil Court has accepted the explanation condoning the delay opining that though the delay may not be satisfactorily explained, the delay could be condoned because reasonable grounds are established. Sri Shivashankar K, the learned counsel for the petitioner, points out that the civil Court has -5- NC: 2023:KHC:45068 WP No. 50892 of 2014 condoned the delay observing that delay is three months and twelve days despite the fact that the Miscellaneous Petition is filed after a period of ten years and that no explanation is offered whatsoever to explain this delay. The learned counsel for the respondent is heard in the light of this contention.
5. The civil Court has indeed condoned the delay observing that the delay is of three months and twelve days to be reckoned from 08.04.2013. The respondent has relied upon the Medical Certificate [Exhibit-P1] to justify his case that he was hospitalized at Mount Abu, Rajasthan during the months of April-May 2013. The civil Court has referred to the cross examination of the respondent and the fact that the petitioner has not entered the witness box to tender evidence to believe the respondent's case that because of the marital discord, he had severed all his relationship with his -6- NC: 2023:KHC:45068 WP No. 50892 of 2014 family members and was residing in Brahmakumari Samaja, Mount Abu, Rajasthan.
6. The civil Court has exercised its discretion, but the larger question for consideration in Misc. No.9/2003 viz., whether the respondent has shown sufficient cause to set aside the ex parte judgment and decree remains still at large. The respondent, who has not tendered evidence so far, can tender evidence to undermine the petitioner's case that he is estranged and because of his mental disposition he had severed his relationship with the family members until the month of February 2013. The petitioner in this regard can also rely upon the material brought on record by the petitioner to demonstrate inconsistency as aforesaid.
7. This Court is of the considered view that in the light of the afore, and to enable complete adjudication, the petition must be disposed of with liberty to the petitioner as aforesaid and observing -7- NC: 2023:KHC:45068 WP No. 50892 of 2014 that the civil Court, with the petitioner leading further evidence must consider the same and the possible inconsistencies in the respondent's case and decide the respondent's request against the ex parte judgment in accordance with law.
The petition stands disposed of accordingly.
Sd/-
JUDGE AN/-