Karnataka High Court
The Executive Engineer (Electricity)) vs Smt. Paravva W/O. Kashappa Kudari, on 16 December, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CIVIL REVISION PETITION NO.100122/2018
BETWEEN:
The Executive Engineer (Electricity)
Post Box No.37, Tabib Land,
Hubballi, Dist. Dharwad - 580020.
... Petitioner
(Sri. Hanumanthareddy Sahukar and
Sri. G.B.Patil, Advocates for petitioner)
AND:
1. Paravva W/o. Kashappa Kudari,
ge 68 years, Occ: Home Maker,
R/o. Ghantikeri Oni, Hubballi,
Dist. Dharwad.
2. Sri. Somashekhar S/o. Kashappa Kudari,
Since deceased by his L.Rs.
2A. Smt. Pooja W/o. Basavaraj Babji,
Age 24 years, occ: Home Maker,
R/o. Dummawad, Tq. Kalagatagi,
Dist. Dharwad.
2B. Smt. Deepa W/o. Shambuling Malagi,
Age 22 years, occ: Home Maker,
R/o. Guledgudda, Tq. Badami,
CRP No.100122/2018
:2:
Dist. Bagalkot.
2C. Sri. Abhishek S/o. Late. Somashekhar Kudari,
Age 21 years, Occ: Nil,
R/o. Ghantikeri Oni, Hubballi,
Dist. Dharwad.
2D. Sri. Mruthyunjayya S/o. Late Somashekhar Kudari,
Age 21 years, Occ: Nil,
R/o. Ghantikeri Oni, Hubballi,
Dist. Dharwad.
3. The Chief Engineer,
Electricity (General) Cauvery Bhavan,
P.B.No.9990, Bengaluru-560009.
...Respondents
(Sri. S.C.Jainar, Advocate for R2(A to D);
Notice to R3 dispensed with v/c/o. dated 14.01.2019)
---
This Civil Revision Petition is filed under Section 115 of
CPC, 1908, against the order dated 25.08.2018 passed in
Miscellaneous Petition No.05/2016 on the file of the II
Additional Civil Judge and JMFC-III, Hubballi, dismissing the
petition filed under Order IX Rule 4 of CPC.
This petition coming on for Admission through physical
hearing/video conferencing hearing this day, the court made
the following:
ORDER
The present respondent Nos.1 and 2 had instituted a suit against the present petitioner and respondent CRP No.100122/2018 :3: No.3 in the Court of the II Additional Civil Judge and JMFC-III Court, Hubballi (for brevity hereinafter referred to as 'the trial Court') in O.S.No.629/2009 for the relief of declaration that Sri. Kashappa @ Kashinath Kudari, the husband of the plaintiff No.1 and father of the plaintiff No.2 who was working as a Driver under Defendant Nos.1 and 2 was dead in the eye of law in view of his disappearance since the year 1968 from Hubballi and that the plaintiffs as their legal heirs and successors are entitled for all the service benefits of the said Kashappa Kudari. The defendants though served with the suit summons were remained ex-parte and did not choose to file their written statement and contest the matter. Consequently, the trial Court based upon the materials placed before it and also going through the evidence of plaintiff No.1 (P.W.1 Parawwa) and the documents produced before it as Ex.P.1 to Ex.P.4 proceeded to decree the suit. It is thereafter the CRP No.100122/2018 :4: defendant No.2 therein joined by a non-party to the suit i.e. "Electricity General Cauvery Bhavan, Benglauru"
filed a Miscellaneous Petition bearing No.5/2016 under Order IX Rule 4 of Code of Civil Procedure (for brevity hereinafter referred to as 'CPC') along with an application under Section 5 of the Limitation Act, seeking setting aside of the ex-parte Judgment and Decree. The trial Court after hearing both sides by its impugned order dated 25.08.2018 dismissed the said petition along with the I.A. on 25.08.2018. Aggrieved by the said order, the second petitioner in the Miscellaneous Petition No.5/2016 has filed the present petition.
2. The respondents are being represented by their respective counsels.
CRP No.100122/2018:5:
3. Though this matter is listed today for Admission, however, with the consent from both sides, the matter is taken up for its final disposal.
4. Heard the arguments from both sides.
Perused the materials placed before this Court.
5. Learned counsel for the petitioner in his argument submitted that, merely because the defendant did not file written statement it does not mean that the plaintiffs are entitled for a decree. He further submitted that, since the very contention of the plaintiffs was that Sri. Kashappa Kudari, who was working as a Driver under the petitioner establishment had remained absconded and unheard since the year 1968, the trial Court ought to have given a fair opportunity to the defendants to contest the matter. With this, he submitted that by all terms, the petition be allowed. CRP No.100122/2018 :6:
6. Opposing the said argument of the learned counsel for the petitioner vehemently, the learned counsel for the respondents in his arguments submitted that, the petitioner being a statutory body and a responsible institution, admittedly when has received the suit summons, did not chose to contest the matter, as such, after its suffering the decree cannot come with the Miscellaneous Petition seeking setting aside of the ex-parte Judgment and Decree, for no valid reasons, as such, the trial Court has rightly rejected their prayer.
7. A perusal of the materials placed before this court would go to show that, the plaintiffs claiming themselves as wife and son of Sri. Kashappa Kudari who admittedly said to have been working as a Driver in the establishment headed by the present petitioner had claimed all his service benefits. They have sought for a declaration that the said Kashappa Kudari who according to them had remained unheard and absconded since the CRP No.100122/2018 :7: year 1968 was to be treated as dead in the eye of law, consequently all the service benefits should go to them being the wife and son of the said Kashappa Kudari. It is not in dispute that, the defendants in the original suit were served with notice despite which they did not choose to file their statement of objection to the same. However, after they suffering a decree in the said suit in the month of January, 2013, they have come up with the Miscellaneous Petition under Order IX Rule 4 of CPC, however, with an inordinate delay of about 5 years 10 months. The reasons shown by the petitioner in the trial Court for setting aside the ex-parte Judgment and Decree was that, one of the case-worker in their establishment who was dealing with the file had fallen ill, as such, the matter was not brought to the notice of the concerned authority, thus the delay was caused.
A perusal of the material would go to show that, in support of the said contention that merely because one CRP No.100122/2018 :8: of the official said to have been fallen ill, the entire administration and the management of the Institution had come to a halt and there were none else in the establishment to look into the matter. Therefore, the contention that one of the official had fallen sick cannot be a valid ground either for non filing of the Miscellaneous Petition in time or for condonation of delay.
On the other hand, a perusal of the materials placed before this Court would got to show that, P.W.1 in Miscellaneous Petition No.5/2016 who had led evidence on behalf of the petitioner in his cross-examination has clearly admitted that after the trial Court passing the Judgment and Decree in O.S.No.629/2009 on 23.01.2013, the Decree Holder had approached the petitioner claiming the benefits given to them under the Decree without any further delay. He also admitted a suggestion as true in the cross- examination that on 04.12.2013, he had written a letter CRP No.100122/2018 :9: to the petitioner's office seeking the guidelines regarding the disbursal of the salary amount of Sri. Kashappa Kudari and he came to know the modality in disbursing the service benefits. He also admitted a suggestion as true that in his very same letter dated 04.12.2013 he has also mentioned about the Judgment and Decree passed by the trial Court in O.S.No.629/2009. These admissions from none else than the petitioner side in the Miscellaneous Petition clearly go to show that, in the year 2013 itself, i.e. in the very same year of the passing of the Judgment and Decree in O.S.No.629/2009, the present petitioners (defendants in the original suit) were aware of the Judgment and Decree.
They were also approached by the Decree Holder seeking their entitlements under the Decree. Despite having such knowledge and making several correspondences in the year 2013 itself, they did not choose to approach the trial Court with the CRP No.100122/2018 : 10 : Miscellaneous Petition under Order IX Rule 4 of CPC for setting aside the ex-parte decree. On the other hand, for no valid reasons they caused an in ordinate delay of 5 years 10 months in approaching the trial Court. Thus the trial Court has observed that there are no reasons either to condone the delay or to allow the Miscellaneous Petition.
Our Hon'ble Apex Court in the case of Basawaraj and another Vs. The Special Land Acquisition Officer, reported in 2013(4) KCCR 3430 (SC), was pleased to observe as below:
"The statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to burry all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence' or latches."CRP No.100122/2018 : 11 :
It was further observed by the Hon'ble Supreme Court in the same case that, " "Sufficient cause" means an adequate and enough reason which prevented him to approach the Court within limitation. In case of a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature."
8. Since in the instant case, the petitioners in Miscellaneous Petition No.5/2016 have utterly failed to show sufficient cause for the condonation of delay, the CRP No.100122/2018 : 12 : trial Court has rejected their petition, as such, in the said order of the trial Court, I do not find any irregularity, perversity or illegality warranting interference at the hands of this Court. Accordingly, I proceed to pass the following order:
ORDER The Civil Revision Petition stands dismissed.
Sd/-
JUDGE *Svh/-