Writ Petition No. 43022 of 2015 · The High Court
Case Details
- 1 - NC: 2025:KHC:10704 WP No. 43022 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 43022 OF 2015 (GM-CPC) BETWEEN: SRI. K.V. PRAKASH S/O G. VENKATESH AGED ABOUT 39 YEARS, RESIDING OF KANASAWADI VILALGE, MADURAI HOBLI, DODDABALAPURA TALUK, BANGALROE RURAL DISTRICT -560 036. (BY SRI. SRIRAM.,ADVOCATE FOR SRI. MITHUN G., ADVOCATES …PETITIONER AND: 1.
Legal Reasoning
Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA 2.
Legal Reasoning
SRI.G. VENKATESH S/O LATE GANGAHANUMAIAH AGED ABOUT 65 YEARS, RESIDING OF KANASAWADI VILLAGE, MADURAI HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT 560 036. SRI. K.V. JAGADEESH S/O G. VENKATESH, AGED ABOUT 37 YEARS, RESIDENT OF KANASAWADI VILLAGE, MADURAI HOBLI,. DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT - 560 036. 3. SRI. K.V. LOKESH S/O G. VENKATESH, - 2 - NC: 2025:KHC:10704 WP No. 43022 of 2015 4. 5. 6. 7. AGED ABOUT 35 YEARS, RESIDINT OF KANASAWADI VILLAGE, MADURAI HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT - 560 036 SMT. GANGAHANUMAKKA W/O LATE GANGAHANUMAIAH AGED ABOIUT 87 YEARS, RESIDENT OF KANASAWADI VILLAGE, MADURAI HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRIT- 560 036 SRI. G. SATHYANARAYANA S/O LATE GANGAHANUMAIAH, AGED ABOUT 65 YEARS, RESIDENT OF KANASAWADI VILLAGE, MADURAI HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT - 560 036 SRI. G. LAKSHMAMMA W/O RANGASWAMAIAH D/O LATE GANGAHANUMAIAH, AGED ABOUT 62 YEARS, RESIDENT OF KANASAWADI VILLAGE, MADURAI HOBLI DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT - 560 036 SMT. G. RAJAMMA W/O THIMMARAYAPPA, D/O LATE GANGAHUMAIAH, AGED ABOIUT 59 YEARS, R/AT NO. 129, ANCHEPALYA VILLAGE, KUMBALAGODU POST, KENGERI HOBLI, - 3 - NC: 2025:KHC:10704 WP No. 43022 of 2015 8. 9. 10. 11. BANGALORE - 560 036 SMT. G. BHAGYAMMA @ SOWBHAGYA W/O RAMAKRISHNAIAH, D/O GANGAHANUMAIAH, AGED ABOUT 56 YEARS, R/AT NO. 55, 7TH CROSS, J.C. NAGAR, MAHALAKSHMIPURAM POST, BANGALROE-560 086. SMT. G. LAKKAMMA W/O C. ASHWATHNARAYANA, D/O LATE GANGAHANUMAIAH, AGED ABOUT 50 LKYEARS, R/AT NO.D-1, POSTAL OFFICERS QUARTERS, OPP: 80 FEET ROAD, INDIRANAGAR, BANGLAORE-560 075. SMT. G. NAGARATHNAMMA W/O LATE SRINIVAS, D/O LATE GANGAHANUMAIAH, AGED ABOUT 48YEARS, RESIDENT OF KANASAWADI VILALGE, MADURAI HOBLI, DODDABALAPUR TALUK, BANGALORE RURAL DISTRICT. SRI. G. RAJ KUMAMAR S/O LALTE GANGAHUMAIAH, AGED ABOUT 46 YEARS, RESIDENT OF KANASAWADI VILLAGE, MADURAI HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT. 12. SMT. G. ANNAPOORNA W/O SRI. CHANDRASHEKAR, D/O LATE GANGAHAMUAIAH, - 4 - NC: 2025:KHC:10704 WP No. 43022 of 2015 AGED ABOUT 43 YEARS, RESIDENT OF GANDRAGOOLIPURA VILLAGE, MADURAI HOBLI, DODDBALLAPUR TALUK, BANGALORE RURAL DISTRICT. 13. SRI. G. GOPINATH S/O LATE GANGAHANUMAIAH, SINCE DEAD BY LR'S 13(a) SMT. R. MANJULA W/O LATE G. GOPINATH AGED ABOUT 40 YEARS 13(b) MR. MOHITH S/O LATE G. GOPINATH AGED ABOUT 18 YEARS BOTH SL. NO.1 AND 2 ARE R/AT NO.8, 11TH CROSS J.C. NAGAR MAHALAKSHMIPURAM (P) NEAR SATHYANARAYANAKALYANAMANTAPA BENGALURU - 560 086. …RESPONDENTS (BY SRI. SRIDHAR B.R., ADVOCATE FOR SRI. M. SHIVAPRAKASH.,ADVOCATE FOR R5; SRI. RAGHAVENDRA V., ADVOCATE FOR R4, 11, R12; R1, R2, R3, R6, R7, R8, R9, R10 AND R13(b) SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.08.2015 PASSED ON I.A.1 IN R.A.10016/2014 BY THE LEARNED IV ADDL. DISTRICT & SESSIONS COURT AT DODDABALLAPURA, BENGALURU RURAL DISTRICT, AT BENGALURU AT ANNEX-A AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 5 - NC: 2025:KHC:10704 WP No. 43022 of 2015 CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner is before this Court being aggrieved by the order dated 18.082015 passed in R.A.No.10016/2014, on the file of IV Additional District and Sessions Court, Doddaballapura, Bengaluru Rural District (hereinafter referred to as 'the First Appellate Court') an application in I.A.No.1 filed by the petitioner under Section 5 of Limitation Act seeking condonation of delay in filing the said appeal. 2. Learned counsel for the petitioner submits that the earlier petitioner had filed suit in O.S.No.245/2007 for relief of partition and separate possession. The plaint in the said suit came to be rejected, upon the application filed by the respondents under Order 7 Rule 11. As against which the petitioner preferred a Civil Revision Petition in C.R.P.No.450/ 2012 before this Court. On 31.01.2014, this Court dismissed the said civil revision petition by holding that the order against the rejection of plaint is appealable order. Accordingly, petitioner thereafter filed the present appeal. That there is a delay of 75 days in filing the appeal after dismissal of the Civil Revision Petition. He further submits that the First Appellate - 6 - NC: 2025:KHC:10704 WP No. 43022 of 2015 Court without taking this intervening aspect of the matter has however held that there is a delay of nearly two years from the date of dismissal of the suit and has come to the erroneous conclusion rejecting the application. Hence seeks for allowing of the petition. 3. Learned counsel for the respondents on the other hand submits that while dismissing the said Civil Revision Petition this Court has not reserved any liberty with regard to seeking condonation of delay, as such the petitioner cannot claim any benefit of he prosecuting the Civil Revision Petition before this Court while seeking condition of delay. Hence seeks for dismissal of the petition. 4. Heard and perused the records. 5. Section 14 of the Limitation Act reads as under; ''14. Exclusion of time of proceeding bona fide in court without jurisdiction.— (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a - 7 - NC: 2025:KHC:10704 WP No. 43022 of 2015 court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. '' 6. Admittedly the petitioner had filed the Civil Revision Petition questioning the rejection of plaint in O.S.No.245/2007. The said revision petition came to be dismissed only on the question of jurisdiction, which is covered under Section 14 of the Limitation Act. The First Appellate Court in the impugned order has lost sight of this aspect of the matter, while calculating the delay in filing the petition. The deposition of PW.1 as noted in paragraph No.11 of the impugned order admitting delay of two years in filing the suit seem to have - 8 - NC: 2025:KHC:10704 WP No. 43022 of 2015 weighed in the mind of the Trial Court while rejecting the application. 7. In that view of the matter, petition is allowed with the following:
Decision
ORDER (i) Impugned order in I.A.No.1, dated 18.08.2015 passed in R.A.No.10016/2014 is set aside. (ii). The matter is relegated to the First Appellate Court to reconsider the question of limitation taking into consideration of the provisions of Section 14 of the Limitation Act and the time consumed by the petitioner in prosecuting the Civil Revision Petition and pass appropriate order. SD/- (M.G.S. KAMAL) JUDGE RL