IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.

Transcription

1 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 20 TH DAY OF FEBRUARY, 2014 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.21548/2013 (CPC) BETWEEN: 1. A MANJUNATH S/O B BASANNA AGE: 43 YEARS, OCC: AGRICULTURE, R/O.KHANA HOSAHALLI VILLAGE KUDLGI TALUKA BELLARY DISTRICT SMT.PADMAVATI W/O A MANJUNATH AGE: 36 YEARS, OCC: AGRICULTURE, R/O.KHANA HOSAHALLI VILLAGE, KUDLGI TALUKA BELLARY DISTRICT APPELLANTS (BY SRI B.C.PATTAR, ADV.) AND: K CHANDRAPPA S/O RAMAPPA AGE: 41 YEARS, OCC: AGRICULTURE, R/O.KHANA HOSAHALLI VILALGE, KUDLGI TALUKA , BELLARY DISTRICT RESPONDENT (BY SRI S.L.MATTI, ADV.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER XLIII RULE 1 (t) OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN CIVIL

2 : 2 : MISC.CASE NO.15/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KUDLIGI, DISMISSING THE PETITION FILED U/O 9 RULE 4 R/W SECTION 151 OF CPC. THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is directed against order passed by the Senior Civil Judge and JMFC., Kudligi, dated dismissing the Civil Miscellaneous Case No.15/2012 filed under Order IX Rule 4 read with Section 151 CPC seeking restoration of R.A.No.16/2011 which came to be dismissed for default on I have heard the arguments of Sri B.C.Pattar, learned counsel for the appellants and Sri S.L.Matti, learned counsel appearing for the respondent. This appeal is taken up for final disposal by consent of learned advocates appearing for the parties. 3. Facts in brief leading to the filing of this appeal are as stated below and parties are referred to as per

3 : 3 : their rank in the trial court namely appellants as defendants and respondent as plaintiff. 4. Plaintiff filed a suit in O.S.No.176/2002 seeking declaration and injunction in respect of suit schedule property and for possession of the suit schedule property. Said suit was contested and same came to be decreed by judgment and decree dated Being aggrieved by the said judgment and decree, defendants filed an appeal in R.A.No.16/2011 on the file of the Senior Civil Judge and JMFC, Kudligi. Said appeal came to be dismissed for default on account of the absence of the advocate by order dated A petition came to be filed under Order IX Rule 4 of the CPC seeking restoration of the said appeal which was objected to by the plaintiff by filing detailed statement of objections. The lower appellate court after considering the arguments advanced by learned advocates formulated the following two points for its consideration:

4 : 4 : i) ii) Whether the petitioners prove that, the petition u/o 9 Rule 4 r/w 151 CPC praying to restore the regular appeal No.16/2011 to provide an opportunity, filed on behalf of the petitioners is deserves to be allowed? What order or award? and after considering the rival contentions, by order dated dismissed the Miscellaneous Petition on the ground that defendants had filed Miscellaneous Petition belatedly and also on the ground there was no ground made out in the application for restoration of appeal. Being aggrieved by this order, present appeal has been filed. 5. It is the contention of Sri B.C.Pattar, learned counsel appearing for the defendants that lower appellate court committed a serious error in construing the date on which the certified copy being kept ready by the registry

5 : 5 : as the starting point of limitation and it ought to have considered the date of copy supplied to appellants as starting point for limitation inasmuch as efforts made by learned advocate to obtain certified copy, it was not ready for delivery till and as such question of there being any delay in filing the application for restoration did not arise and as such order of the trial court is erroneous. He would also submit that non-production of medical certificate would not be a ground for not considering the plea for restoration of appeal since the appellate court cannot insist for such certificate being produced and it can call upon the party to produce medical certificate when only the suit is dismissed and not when an appeal has been dismissed. He would also elaborate his submission by contending on account of serious sickness of appellant No.1 namely he had been attacked with paralysis and as such he could not file application on time for restoration and this fact was not taken note of by the

6 : 6 : lower appellate court. Hence, he submits that if the period of limitation is reckoned from the date of delivery of certified copy namely as the starting point of limitation, application has to be filed within 30 days since appeal had been filed for restoration on and as such, no error can be found on the part of defendants since application for restoration was within 30 days from date of receipt of certified copy of the order of dismissal. On these grounds, he seeks for allowing the appeal. 6. Per contra, Sri Matti, learned counsel appearing for the plaintiff would support the order passed by the trial court and contends that starting point for limitation would not be from the date of obtaining certified copy but it would be from the date on which applicant was told to appear and as such the order of trial court does not suffer from any infirmity and even otherwise, he submits that

7 : 7 : there is no ground made out by the defendants for restoring the appeal. 7. Having heard the learned advocates appearing for the parties and on perusal of the order passed by the lower appellate court as also the case papers, I am of the considered view that following points would arise for my consideration: i) ii) Whether the lower appellate court was justified in dismissing the application filed under Order IX Rule 4 r/w 151 CPC by the defendants seeking restoration of the appeal R.A.No.16/2012 which had been dismissed for default on ? What order? 8. Appeal R.A.No.16/2011 had been filed on Said appeal was filed challenging the judgment and decree passed in O.S.No.176/2002. Along with the appeal, IA-II had been filed by the respondent

8 : 8 : seeking condonation of delay and to hear the same, matter was being adjourned. Despite sufficient time being granted to appellants, none have appeared. As such, lower appellate court dismissed the appeal for default on as the defendants were not present before the lower appellate court on said date when matter was called. It was contended in the Miscellaneous Petition filed under Order IX Rule 4 r/w 151 CPC seeking restoration of the appeal that absence of the defendants (appellants) on was not intentional and on account of mistake of the counsel in noting the date of hearing, counsel did not appear on the said date and showing the said cause for absence, dismissal of the appeal for default passed on was sought for being set aside and restoration of the appeal was sought for. 9. At the outset, it requires to be noticed that when appeal is dismissed for default under Order XLI Rule 17,

9 : 9 : the recourse left open to the aggrieved party namely the appellants is to seek for re-admission of the appeal by invoking Order XLI Rule 19 and establishing before the appellate court that appellants were prevented by any sufficient cause from appearing on the hearing date when the appeal was called for hearing and if the appellate court is satisfied that cause shown is sufficient, it can readmit the appeal on such terms as to costs or otherwise and proceed to hear the appeal on merits. In the normal circumstances, the discretion exercised by the lower appellate court would not be interfered by the High Court unless said order passed by the lower appellate court strikes the conscious of the court. For this proposition, the judgment of the co-ordinate bench of this Court in the case of SMT.DAKSHAYANI AND OTHERS VS. SMT.KAMALA AND OTHERS (2000 (2) KCCR SN 40) can be looked up.

10 : 10 : 10. In the instant case, appeal R.A.No.16/2011 came to be dismissed for default on Undisputedly, appellants i.e., the defendants did not file an application for restoration of the appeal or readmission of the appeal by filing an application under Order XLI Rule 19 CPC. For reasons best known, they choose the course of invoking jurisdiction under Order IX Rule 4 r/w Section 151 CPC. It is no doubt true that quoting of a wrong provision of law would not be a ground to dismiss the application. Even assuming or construing that application filed under Order IX Rule 4 CPC is to be construed as an application filed under Order XLI Rule 19 CPC, then it has to be examined as to whether such an application was filed in time. 11. Article 122 of the Limitation Act, 1963 prescribes 30 days period of limitation for seeking restoration of an appeal dismissed for default. The said Article reads as under:

11 : 11 : 122. To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. Thirty days The date of dismissal 12. Though Article 122 does not indicate that the starting point of limitation would be from the date of knowledge, I am of the considered view that Section 12 will have to be read in conjunction with Article 122 inasmuch as, in the instant case, bone of contention is as to when the starting point of limitation would commence. 13. On the one hand, Sri B.C.Pattar, learned counsel appearing for the defendants has contended that it would commence from the date on certified copy is delivered and on the other hand Sri Matti, learned counsel appearing for the plaintiff would submit that starting point

12 : 12 : of limitation would commence from the date on which certified copy was ready and applicant was told to appear to collect the said certified copy. In this background, it has to be seen that Section 12 (3) of the Limitation Act provides for exclusion of time taken for obtaining certified copy in legal proceedings for computation. Section 12 reads as under: 12. Exclusion of time in legal proceedings- (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

13 : 13 : (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order the time requisite for obtaining a copy of the judgment shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation - In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for copy thereof is made shall not be excluded. 14. A perusal of the above provision would indicate that period of limitation for any suit, appeal or application the date from which said period is reckoned is to be excluded as per sub section (1). Sub section (2) provides for exclusion of the period of the day on which the judgment or order was pronounced and the time required

14 : 14 : for obtaining a copy of the decree or sentence or order is to be excluded. Perusal of sub section (3) would indicate that time required for obtaining the copy of the judgment shall be excluded. 15. Chapter 23 of the Karnataka Civil Rules of Practice, 1967, deals with copies and applications presented in Court. Rule 23 provides that a party to a suit or proceeding being entitled to obtain copies of the records of the suit or proceedings. Rule 249 would indicate that in the last sheet of every copy and if no steps is available therein, the reverse side of the last sheet should bear the following endorsements. Rule 249 reads as under: 249. Endorsement and Seal - 1) the last sheet of every copy and if no space is available therein the reverse side of the last sheet, shall bear the following endorsements- 1. Copy applied for on..

15 : 15 : 2. Copying sheets/charges required to be produced on. 3. Copying sheets/charges produced on.. 4. Applicant required to appear on.. 5. Applicant appeared on. 6. Copy ready on * 7. Copy delivered on * 8. Copied by 9. Examined by.. To be filled in and initialled by the Chief Ministerial Officer both on the copy and in the Register. Notes 1. The dates referred to in this rule shall be expressed in figures and not in words and all corrections shall be properly attested. The Chief Ministerial Officer shall satisfy himself that these entries have been correctly made. 2. The Presiding Judge also should be examining Register No. X from time to time and perusing the copies satisfy

16 : 16 : himself that the endorsements on copies are properly and correctly made. A rubber stamp may be used for the above endorsement. But the dates shall be entered by the Official concerned in ink, and the date on which the copy was ready in read ink. 2) The seal of the Court shall, when the copy is ready for delivery, be affixed to each sheet by or in the presence of the Chief Ministerial Officer. 16. Rule 251 would indicate when copies have been made ready for delivery, the records shall at once be returned to the record keeper or clerk from whom they had been obtained. Rule 252 would indicate the manner of notifying the applicant with regard to certified copies. Under clause (c) of Rule 252 Register No.X-D has to be maintained for notifying the dates on which the applicants have to appear to receive the copies. Thus, clause (c) of 252 and Rule 249 has to be read in conjunction with each

17 : 17 : other and when so read it would indicate that after the applicant applies for a copy he would be told or intimated the date on which he has to appear i.e., the applicant would be required to appear on the date fixed for collecting the certified copy. If for any reason, the applicant is unable to collect certified copy or collects at a later date then the date on which the registry has notified, the applicant cannot be heard to contend that for the purposes of reckoning the limitation and applying the provisions of Section 12, the entire copying delay i.e., from the date on which the application was made till the date on which the certified copy was furnished is to be excluded. Such proposition would become redundant in the background of Rule 249 inasmuch as the applicant will be told to appear on a particular date to collect the certified copy. At this juncture, it would be appropriate to note the judgment of a Full Bench of Punjab and Haryana in the case of MAHANT GURMUKH SINGH VS. THE STATE

18 : 18 : OF PUNJAB AND OTHERS (AIR 1970 P and H 282) whereunder it was noticed that copy of the judgment filed by the party was dated and it was ready in the office on which was not collected on that date and thereafter it was collected on and held that the party was not entitled to add the whole period upto to the normal period of limitation in the background of Article 132 of the Limitation Act in the said case. It was held by the Full Bench that while filing an application for special leave to appeal to Supreme Court, the period of limitation of 60 days as prescribed under Article 132 of Limitation Act can be reckoned by adding the period between date of application for grant of certified copy and date of preparation of copy by office of court. It has been held as under: 3. Mr. Puran Chand has argued that the Supreme Court has held in State of U.P. v. Maharaja Narain, AIR 1968 SC 960, that a

19 : 19 : litigant is entitled to the entire time actually spent by him in obtaining the copy and not only the time which was required by the Court for preparing the copy. We have carefully gone through the judgment of the Supreme Court in Maharaja Narain's case, AIR 1968 SC 960, and are unable to agree with Mr. Puran Chand that any such proposition of law has been laid down by their Lordships of the Supreme Court as is sought to be canvassed before us by the learned counsel. In the case of Maharaja Narain, AIR 1960 SC 960, the Supreme Court had set aside and reversed the order of the Allahabad High Court dismissing the State's appeal against acquittal on the ground that though it was within time after adding the period actually spent in the preparation of the certified copy of the lower Court's order filed with the appeal, it was still out of limitation as the State was entitled to a much lesser time which had been taken by the State in obtaining another copy of the same order of the trial Court. The view adopted by the Allahabad High Court was undoubtedly

20 : 20 : supported by a decision of the Lahore High Court in Mathela v. Sher Mohammad, AIR 1935 Lah 682. In that case also it had been held that the time requisite means simply time required by the appellant to obtain a copy of the decree, assuming that he acted with reasonable promptitude and diligence, and that the time requisite for obtaining a copy is the shortest time during which copy would have been obtained by the appellant, and has nothing to do with the amount of time spent by him in obtaining the particular copy which he chose to file with the memorandum of appeal. While accepting the State's appeal against the decision of the Allahabad High Court, their Lordships of the Supreme Court overruled the Lahore view. No such thing happened in the instant case. The question as to whether the time between, the date on which the certified copy is in fact ready for delivery to the knowledge of the applicant, and the date on which he actually takes delivery of the copy, should or should not be treated as time requisite for preparing the copy never came up

21 : 21 : for consideration before the Supreme Court in Maharaja Narain's case, AIR 1968 SC 960. On the other hand, it is apparent that their Lordships of the Supreme Court did not differ from the view taken by the Judicial Committee in Pramatha Nath Roy v. William Arthur Lee, 49 Ind App 307=AIR 1922 PC 352. In that case, the Judicial Committee had held that the applicant was not entitled to deduct the time lost due to his own laches, and that the time which need not have elapsed, if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order, could not be regarded as 'requisite' within the meaning of Sub-section (2) of Section 12. Their Lordships expressly approved of the view taken by a Full Bench of the Madras High Court in Tirumala Reddi v. Anave-mareddi, ILR 57 Mad 560-AIR 1934 Mad 306 (FB) to the effect that the words "time requisite for obtaining a copy of the decree, sentence or order" in Section 12(2) of the Limitation Act mean the time beyond the party's control occupied in obtaining the copy which is filed with the memorandum of appeal,

22 : 22 : and not an ideal lesser period which might have been occupied if the application for copy had been filed at some other date. The judgment of the Supreme Court is, therefore, of no avail to the petitioner. If the view sought to be canvassed by Mr. Puran Chand were to be accepted, it would have to be held, as suggested by the learned counsel, that if after coming to know that the certified copy is ready, the applicant sits at home for six months or a year, and actually chooses to collect the copy after the expiry of that period, he would be entitled to add even those six months or year to the time to which he is entitled for filing the appeal under Section 12(2) of the Limitation Act. This appears to us to be preposterous. We have, therefore, no hesitation in repelling this contention of Mr. Puran Chand, and in holding that the last date for filing the Supreme Court Application in this case was June 22, 1968, after availing of the normal period of sixty days provided under Article 132, and an additional period of 36 days under Section 12(2) of the Limitation Act. The

23 : 23 : Supreme Court Application was, therefore, filed far beyond time when it was submitted to this Court for the first time on September 20, Counsel then submitted that we should extend the time for filing the application under Article 133 of the Constitution up to September 20, 1968, by holding that the applicant was prevented by sufficient cause from filing it any earlier. The only cause which is mentioned in the miscellaneous application is expressed in the following words:-- "That as the charges of the certified copy were more than Rs. 200/-, the petitioner was not able to arrange such a big amount and could only get the copy on August 27, 1968, and the petitioner deserves to be allowed time from the data of application till the date of delivery and if this time is allowed, then the application is within time." The above quoted averment in the miscellaneous application does not really amount to an explanation for the delay, but is a plea in support of the first submission made by

24 : 24 : counsel. Even otherwise, we are unable to hold that if an applicant is not able to collect a certified copy for about three months after it is ready to his knowledge because he had to arrange for money to pay the costs of the copy, it would amount to a sufficient cause for delay in filing the petition within the meaning of Section 5 of the Limitation Act. A Division Bench of this Court consisting of Dulat, J. and my Lord P. C. Pandit, J. held in Punjab State v. Gopal Singh, AIR 1964 Punj 154, that whether the appellant happens to be the State Government and the reason given out for the delay in filing an appeal was that the delay had occurred because on the last day of the limitation, the appellant discovered that it did not have sufficient money to buy the necessary court-fee, but no explanation is forthcoming as to why such state of affairs was allowed to come into existence, the appellant is not entitled to the benefit of Section 5. Though in that case the Government official concerned could not necessarily be expected to pay the money required for court-fee from his pocket,

25 : 25 : and no latitude was allowed to the Government as no explanation was given for not putting the official concerned in funds within time, the position is worse in the present case. Mere non-availability of funds for obtaining the requisite certified copy is, in our opinion, no ground for the extension of time under Section 5 of the Limitation. Act. Once it is found that the Supreme Court Application was barred by time, the petitioner has also to explain as to what prevented him from filing the application for leave to appeal to the Supreme Court even after obtaining the certified copy of the -judgment on August 27, 1968, till he actually filed it on September 20, Even a purported explanation for this delay is not forthcoming in the application of the petitioner or the affidavit supporting it. We are, therefore, unable to allow the application under Section 5 of the Limitation Act as there is no valid ground whatever for extending the time under that provision of law."

26 : 26 : 17. In the background of law laid hereinabove and the discussion made hereinabove when the facts on hand are examined, it would indicate that appeal came to be dismissed for default on Copy was applied on and it was ready on For reasons best known, applicants i.e., defendants did not collect the certified copy and it was obtained by them on and thereafter they have filed the appeal within 30 days from i.e., Thus, period of limitation has to be reckoned from the date on which the applicant was told to collect the certified copy or was required to collect the certified copy as notified by the registry which admittedly and undisputedly was When so reckoned, the delay would be beyond 8 months. No application had been filed by defendants seeking condonation of delay. It is their contention when there is no delay, question of filing an application seeking condonation does not arise at all.

27 : 27 : 18. As held by the Hon ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. MST. KATIJI AND OTHERS (AIR 1987 SC 1353), it is not the length of delay but it would be the cause for delay which would be the deciding factor as to whether sufficient cause is shown for the delay being condoned. 19. In the instant case, surprisingly, no application for condonation of delay even by way of abundant caution had been filed. No reasons are forthcoming for the said lapse. Even otherwise when the averments made in the petition filed under Order IX Rule 4 r/w Section 151 CPC is perused, it would indicate that there is no explanation whatsoever offered for delay in filing the application for restoration of appeal. Except contending that due to ill health of the petitioner No.1 and counsel having noted down wrong date there was no appearance, is too remote a cause and to establish these two factors neither the

28 : 28 : affidavit of the advocate was filed nor any medical certificate was produced before the lower appellate court. The cause shown is as vague, vagueness could be. Had there been an application seeking for condonation of delay, this Court would have certainly considered the plea in a holistic manner and in order to substantial justice between the parties, this Court would have examined and considered whether plea putforward or cause shown is to be accepted or not and in all probability it would have condoned the delay by putting the parties to terms. In the absence of such an application, if this Court were to venture to examine the plea not available on record it would result in going overboard. Hence, this court desists from embarking upon such an exercise. It is in this background, lower appellate court has taken note of the following aspects to dismiss the application for restoration namely: a) defendant did not show sufficient cause;

29 : 29 : b) no medical records were produced, c) there was delay of more than 8 months in filing the application for restoration and no application for condonation of delay had been filed; d) delay in filing the application was not explained with sufficient cause even in the application filed for restoration under Order IX Rule 4 CPC, e) even the application filed was not under Order XLI Rule 19 but it was filed under Order IX Rule 4 CPC. 20. I do not find any infirmity in the finding recorded by the trial court and there is no ground made out to interfere with the order passed by the trial court. It does not suffer from any material irregularity either on facts or in law calling for interference. Hence, Point No.1 formulated hereinabove is answered in the affirmative. POINT NO.2:

30 : 30 : 21. For the reasons aforementioned, I proceed to pass the following: ORDER i) Appeal is hereby dismissed, ii) Order passed by the Senior Civil Judge and JMFC., Kudligi, dated in Civil Miscellaneous Case No.15/2012 is hereby affirmed, iii) No order as to costs. II/2012 does not survive for consideration. Hence, it stands rejected. In view of the appeal having been disposed of, IA- SD/- JUDGE Jm/-