Karnataka High Court
Sri Sadiq Hussain S.Pachorawala vs Sri Mohammed Rafeeq on 18 August, 2018
Author: S G Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE S.G.PANDIT
WRIT PETITION No.3475 OF 2018 (GM-CPC)
Between
1. Sri. Sadiq Hussain.S.Pachorawala,
Aged about 75 years,
S/o late Sri.Pachoriwala,
(Senior citizen benefit not claimed)
2. Sri. Mufaddal Pachorawala,
Aged about 45 years,
S/o Sri. H.S.Pachoriwala.
3. Smt. Farida,
D/o H.S.Pachorawala,
Aged about 43 years,
All Petitioners 1 to 3
R/a No.32, 1st Floor,
1st Cross, CSI Compound,
Mission Road,
Bangalore - 560 027 ... Petitioners
(By Sri. K.T.Vasudeva Iyengar, Advocate)
And
Sri. Mohammed Rafeeq,
S/o Sri. Shafiulla,
Aged about 40 years,
No.19/1, 4th Cross,
Mohammedin Block,
Chamarajapet,
Bangalore - 560 018 ... Respondent
(By Sri. Mari Gowda, Advocate)
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This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the orders dated
30.11.2017 as illegal (Annexure-G) in Misc.Case
No.43/2016 on the file of 12th Additional City Civil and
Sessions Judge CCH-27, Bangalore and etc.,
This Writ Petition coming on for Preliminary
Hearing this day, the court made the following:
ORDER
The petitioners are before this Court challenging the order dated 30.11.2017 on I.A.No.1 in miscellaneous case No.43/2016 on the file of 12th Additional City Civil and Sessions Judge, Bangalore.
2. The petitioners are respondents and respondent herein is petitioner in Misc.No.43/2016 filed under Order 9 Rule 13 of CPC to set aside the judgment and decree dated 24.04.2015 passed in O.S.No.792/2014. Along with miscellaneous petition (Misc.No.43/2016), the respondent herein had filed I.A.No.1 under Section 5 of Limitation Act. The trial court by its order dated 30.11.2017 allowed I.A.No.1 filed under Section 5 of Limitation Act, and condoned the delay, which order is impugned in the present writ petition.
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3. Heard the learned counsel for the petitioners and learned counsel for the respondent. Perused the writ papers.
4. Learned counsel for the petitioners submits that the judgment and decree in O.S.No.792/2014 was passed on 24.04.2015 and Misc.No.43/2016 was filed on 12.01.2016. There is an inordinate delay of 262 days in filing Misc.No.43/2016. No reasons much less the acceptable reasons have been assigned by the respondent herein to condone the delay. It is his further submission that no documents are produced to condone the delay of 262 days in filing miscellaneous petition (Misc.No.43/2016). It is further submitted that the trial court without looking into the material on record and without any acceptable cause has condoned the delay of 262 days.
5. Learned counsel for the petitioners further submits that as the judgment and decree 4 passed is for ejectment of the respondent, the petitioners have taken possession of the suit schedule property on 07.11.2015 and the respondent is in arrears of rent in a sum of Rs.23,00,000/- (Rupees Twenty three lakhs only) for which execution No.2317/2015 is filed.
6. Per contra, learned counsel for the respondent submits that the judgment and decree in O.S.No.792/2014 was passed on 24.04.2015 and against the said judgment and decree, the respondent herein filed RFA.No.1081/2015 before this Court on 27.07.2015, which was withdrawn by respondent on 11.01.2016. Immediately on the next day i.e., on 12.01.2016, the respondent has filed miscellaneous petition (Misc.No.43/2016) to set aside exparte judgment and decree dated 24.04.2015 passed in O.S.No.792/2014. His further submission is that in the said process, there was a delay of 262 days in filing the miscellaneous petition (Misc.No.43/2016), which is bonafied and not deliberate. Further, it 5 is his submission that before the trial court on the application under Section 5 of Limitation Act, evidence has been let in. The trial court has rightly passed the order condoning the delay by allowing the application filed under Section 5 of Limitation Act.
7. The respondent herein suffered judgment and decree dated 24.04.2015 in O.S.No.792/2014. Against the said judgment and decree, admittedly, the respondent filed RFA.No.1081/2015 before this Court, which was withdrawn with liberty to file miscellaneous petition on 11.01.2016. Immediately on the next day i.e, on 12.01.2016, the respondent has filed miscellaneous petition (Misc.No.43/2016) under Order 9 Rule 13 of CPC to set aside the judgment and decree dated 24.04.2015 passed in O.S.No.792/2014. The respondent examined himself as PW-1 in miscellaneous petition (Misc.No.43/2016) on I.A.No.1 filed under Section 5 of Limitation Act, and marked Ex.P1 to Ex.P6. The trial court on the 6 material available before it passed order dated 30.11.2017 and allowed the application by condoning the delay. The trial court has not committed any error or illegality in allowing the application and condoning delay of 262 days in filing miscellaneous petition (Misc.No.43/2016). It is seen that the respondent herein has filed RFA.No.1081/2015 against the judgment and decree within the period of limitation and he was prosecuting RFA.No.1081/2015, which was withdrawn on 11.01.2016 and immediately on the next day i.e., on 12.01.2016, he has filed miscellaneous petition (Misc.No.43/2016). Therefore, I see no error or illegality in condoning the delay by the trial court. The contention of the petitioners that the respondent has not explained the delay of 262 for filing miscellaneous petition (Misc.No.43/2016) cannot be accepted in view of the above facts. Further, the contention that trial court condoned the delay without any proper reason, is also liable to be rejected. The respondent has assigned reason that he was 7 prosecuting RFA.No.1081/2015 before this Court, which was withdrawn with liberty to file miscellaneous petition (Misc.No.43/2016) and on the next day itself, he has filed miscellaneous petition (Misc.No.43/2016).
8. The petitioners have not made out any ground to interfere with the order passed by the trial court. Accordingly, writ petition is dismissed as devoid of merit.
SD/-
JUDGE SMJ/rv