Karnataka High Court
Namrata N R vs Dr Sanjeev Kumar A Hiremath on 22 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.694/2020
BETWEEN
NAMRATA N R
W/O DR SANJEEV KUMAR A HIREMATH
AGED ABOUT 43 YEARS
R/AT NO.91, 1ST MAIN
KANAKA LAYOUT
BEHIND KADRENAHALLI PETROL BUNK
BANASHANAKRI 2ND STAGE
BENGALURU-560070
...PETITIONER
(BY SMT. AKKAMAHADEVI HIREMATH, ADVOCATE)
AND
1 . DR SANJEEV KUMAR A HIREMATH
S/O A C HIREMATH
AGED ABOUT 48 YEARS
2 . A C HIREMATH
AGED ABOUT 79 YEARS
BENGALURU-560061.
3 . SHAKUNTALA HIREMATH
W/O A C HIREMATH
AGED ABOUT 69 YEARS
2
ALL ARE R/AT NO.2, 19TH CROSS
13TH MAIN, KRISHNA GARDEN
REVENUE LAYOUT
SUBRAMANYAPURA
BENGALURU-560061.
... RESPONDENTS
(BY SRI AJAY KADKOL, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
ORDER DATED 14.02.2020 PASSED BY THE LEARNED LX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
CRL.A.NO.1423/2019 AND ETC.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission. Heard the respective counsel appearing for the parties.
2. The factual matrix of the case is that this petitioner had filed an application before the Trial Court in Crl.Misc.No.127/2017 and interim application filed by the petitioner under Section 23 read with Section 18, 19(1) (a), (d) 3 and (e) and Section 20 of the PWDV Act, 2005 and the same was rejected and hence, an appeal was filed in Crl.A.No.1423/2019 and while filing the appeal, an application is filed under Section 5 of the Limitation Act and there was a delay of 179 days in filing the appeal and the same is not intentional one since the appellant was suffering from medical ailment and she was also admitted to the hospital and thereafter she was in continuous treatment. The Appellate Court after hearing on delay application came to the conclusion that the appellant i.e., the petitioner herein appeared before the Trial Court and contested the case and knows about the proceedings of the Trial Court. That apart, at the time of pronouncing the interim order, the appellant was present and inspite of the same, the appellant having the knowledge, not diligently challenged the said order and delay has not been properly explained and hence, dismissed the application filed under Section 5 of the Limitation Act and consequently, the appeal was also dismissed. Hence, the present revision petition is filed before this Court. 4
3. The learned counsel for the petitioner would vehemently contend that the Sessions Judge inspite of considering the reasons assigned in the application and affidavit passed a technical order in coming to the conclusion that the delay has not been properly explained and the very approach of the Appellate Court is erroneous and ought to have condoned the delay and considered the matter on merits and hence, it requires interference of this Court.
4. Per contra, the counsel appearing for the respondent would vehemently contend that the very document placed before this Court i.e., inpatient final bill discloses that she was admitted to the hospital on 24.03.2018 and discharged on 26.03.2019 and an order was passed by the Trial Court on 20.11.2018 and the same has been questioned after the long time and delay also not properly explained. The Appellate Court also while considering the delay application assigned the reason in paragraphs 11 and 12 and rightly came to the conclusion that delay in filing the appeal has not been explained and not made out the grounds to 5 entertain the revision petition. When such reasoning is given, it is not a case for exercising the revisional jurisdiction.
5. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record, no doubt, the impugned order passed on 20.11.2018 and thereafter, an appeal was filed after the lapse of 179 days. It is also important to note that the very document placed before the Court is in respect of the year March 2019 and not prior to that but the fact is that the maintenance application for seeking interim order was rejected in the month of November 2018. No doubt, there was a delay of 179 days. When the petitioner has given the reason that she was not keeping good health and she was under treatment and in order to substantiate the same, has produced the documents to show that she was admitted to the hospital during the month of March 2019. When such being the case, the Appellate Court should not even too technical in condoning the delay of 179 days in filing the appeal and the matter ought to have been admitted on merits and instead of hearing the matter on merits on technical ground in coming to 6 the conclusion that delay was not properly explained and rejected the appeal and the very approach of the Appellate Court is not based on the sound reason and the Court has to see that substantial justice should be done and not to reject the application on technical ground and technicality cannot be prevail over the substantial justice. Hence, I am of the opinion that the order passed by the Appellate Court requires to be interfered by this Court and set aside the same and consequently, the application filed under Section 5 of the Limitation Act has to be allowed and the matter requires to be remanded to the Appellate Court to consider the matter on merits.
6. In view of the discussions made above, I pass the following:
ORDER The revision petition is allowed. The impugned order dated 14.02.2020 in Crl.A.No.1423/2019 is set aside and consequently the application filed under Section 5 of the 7 Limitation Act is allowed and the matter is remanded to the Appellate Court to consider the matter afresh on merits. This matter is of the year 2019 and hence, time of three months is granted to consider the matter afresh from 31.03.2022.
Both the respective counsel appearing for the parties are directed to assist the Appellate Court in disposal of the matter within three months.
Sd/-
JUDGE SN