4V.sv;'i:%*i2%svst'£'§~Ire%A, ~ _____ .. »
A.G1*;:~ .40 Y --.
_ . : »- « .4; V ..,L.T.KAR1,EI~,
" xSiNC§E'. DECEASED BY LRS.
ca)' 'SEIDHARSHANA KARLE,
" I153 MAHENDRA KARLE,
W? 12584 [2008
IN THE HIGH mum' 014' KARNATAKA AT BANGALoz2:E:.T.
DATED THIS THE 19111 DAY 0? DECEMBER, "
BEFORE "
THE HGWBLE MR.JUsTIg:éB;s ESTIL' _5 H
war!' mnnon No.12__§__ 84£»§€O®_ . u "
BETWEEN:
1. H.G.RAVISI-XANKAR, :
s/o BASAVE Gowm, '
AGE 48 YEARS, g _ -
MAJOR,COF'F'F}'E P;,AN'rER,=: 'V _
THIPPANAHA.!.~.J£ .
cH1cKMAGALo:_eE_---- 5'?-7.10-1j:. V'
2. A.B.MALLIK:'sRJifJNA;f*i .
S/O BASAVE GCWI3_P!,p * _
ACEESOYEARS', ' _
MAJOR, (:<)F~FEE'?;,A3s1TER-,.___ ''
TH1MPPANA§iALI,1 ESTATE,
CHICKMAGALOEEI5 .-, 577'v.10'i.
15,50 \'.KL3OMfi'.NNA,
'MA-JOE,--S@NU§?ALL1,
KOPPA TALUK,
CHf$__KM£;GAI,}.ORE DEST.
s/0 LATE L.'I'.KAR1.E.
S/O LATE L.'I'.KARLE.
GARMENT FACTORY OWNERS,
NC). 151, INDUSTRLAL SABAR,
YASHWANTHPIJR,
BANGALORE - 22.
W? 12584 /2008
5. GOWRAMMA,
W] O M.P.ESWARAPPA,
AGE 70 YEARS,
MAJOR, NO. 107,
71'" CROSS, LOWER PALACE,
ORCHARD,
BANGALORE -- 93. ..RmRjG!§ERR._
(BY SR} ESHWARAPPA, SR. COUNSEL FOR
R.G.i-IALESHA AND K,G.NAY1'~'s.K, AIDVJ
AND:
NAGAVEN1,
AGED ABOUT 33 YEARS,
D/O SUBBARAYAPPA, -. -
R/A G0'mGERE VILLAGE, '
BANNERGHATTA , :
BANGALORE S0U'EfH'1f;;¥aLL?K,'-A _ "
BANGALORE. " ..RESPONDENT
(BY SR1 H.K,.¥{ENCH_EGQwDA;'aijvfi ~
THIS RE'I'IT1o.:~:§ .1,s<RILR,13.,L:N:)RR ARTICLES 225 85 227 OF'
THE cowswmmon or%~.;NR1R.1_=-R.a_Y1NG TO QUASH ANNEX-G THE
ORDER OF '£'HE"DISTRIC»'1'.JUD(}i£;' BANGALORE RURAL DISTRICT,
BANGALORE, r::r_. 22.0'?._2098 EN_§R.A.NO.18G/2007 85 ETC.
':fRz"S RmmC:~11 'HA\riNG BEEN RESERVED FOR ORDERS
SCOMINC: OISLFOR PRON'O'U'NCEMENT, THIS BAY, THE COURT MADE
' 'THE FQLLO§?}?~IQE«..._
ORDER
1. ” £?§?i*if..R};§£:tition, petifioners an: chaflcngm g the order
dated passed in R.A.Na.180/200?. Petiticmers have
V for a writ of mandamus to direct the couxt below not
ac’: finther in the matter in R.A.No.180/2007 as the
‘ is time barmd.
fig
we 12584/2008
2. Pefifioners 1 to 5 herein are respendents in the lower
Appellate Court. The respondent in this writ pefition.j'””S{n3t.
Nagaveni has filed R.A.No.180/2007 on the file V.
District & Sessions Judge, Bangalozne Rural ‘
the onder dated 0140.200′? passed b:g* fl:1;e’! tggldz, :Jeéige”‘.
(Sr.Dn.), Bangalore Rural District in
the plaint. As there was a Idefay sf the appeal,
the appellant-respondent Lgiigplicafion under
Section 5 of the of delay.
The msponden§”ne;eiLs;:~ in support of the
applications “o-‘f in the affidavit filed,
she has ” fixowledge of the fact that the
appeal was Vic; within 30 days and that she was
__1;nah1e.. ‘vcentacf’ to file the appeal. She has
assexiegfilgat the appeal was filed within the pexiod at
__t”Eie”V..cIate of her knowledge. She has further
V VV stated {hat applicafion was not allowed and the delay was
zeetndoneel, it W131 cause serious injury to her interest,
such untoici haxdshiy or irreparable loss will be
VT to the zespondent.
gx.
we 12584/2008
Call on for orders Iegaxtling the compliance of
Order 39 Rule 32». and Sec. 340 ope. Also files one
more list with authorities.
Call on by 22.07.2003.’
4. It is seen from the Ieeoxtis of
lower Appellate Court that fl1eV”i’e».V::f3e*tiflonere an
application seeking disposoi~.._of time.
Another application under was filed by respondents 9, into the alleged
ofience committed’ as per Sections 181
and 193 of”IPC. in this regard to the
Magisi1ate::”.i:o” ” xeiceordance with law. This
application ie’ mode in the aifidavit filed by the
_I:1exfeinmv.eee1;i;ig.condonation of delay, she had made
therefore she was liable to be punished for
t11e”‘oo”éace”i1:3:Lcier’ See-tion 181 read with Section 1931130.
.”‘:’~..V xeppearing for the petitioners herein insisted
:,t’_heiV”‘1oWer Appellate Court to pass orders on the
oppfioétfion med by him in IA No.3 seeking to initiate action to
T against the appellant alleging the offence under
” 181 and Section 193 me. Several rulings were cited by
i theieafleritigiiieeide the matter. It is this order that is
‘ciiallenged i1v_3_i*tl3.i.s writ petition.
Senior Counsel appearing for the petitioners
. that the lower Appellate Court ought to have
ismissed the appeal as barxed by time having regard to the
WP 12534/2008
6
the learned Counsel appearing for the petitioners herein before
the lower Appellate Court. Noting the contentions of both the
parties, the court below has found that the application IA.~.I§o.3
was based upon the service of caveat petition on the
herein, (appeflant before the lower Appeflate ‘
evidenced by the postal aeknow1edgment.._ As’ it it
was that despite service oi’ had
sworn to a false afidavit ” application for
condonation of deIay._stati»11vgt–t1iat. eiie ietiowledge of the
Bassiflg of the ~»
6. In he_rW seems to have
denied the gag Vjcaveat’-pe¥;ition on her. It is in this
background ,the=Iov;.4’er Court has opined that the ‘
matter geqqirezihi evidet1ce’ merely on oral arguments
otiestiongs of mrxot be answered. The court below
V”iti_ifit to provide opportunity to lead evidence
WP l2584/2008
7
statement made by the appellant herself before the lower
Appellate Court in the amdavit filed in support of the
application for condonation of delay. He has xelied on the
judgment in the case of Ru
L1Z.AVA’I’1′, AIR 1953 Games? 119, to oontenéi
law has no excuse and delay “oa’;a;1ot Be: coadot1eei'<*»o.n ethat
ground. Reliance is also »vtl1e_»_»deoisiot1fiof Apex
Court in the case of cums vs scum
nvmm BANK L.m., are zoos that the date
of knowledge of lleijéjlellliejiiesented thmugh a
lawyer is of no judgments in the case
of zmueoos me 2559; myaosze
vs mmaooea let' zoos my 2553; and in the
case of"'§UIl?1CI§AL coemmnozv as 02.3. vs.
db ANR., AIR' 2008 c.4Lcm*m 175,
at in support of his contention that non»
exp1anal§m1,ol_' by green' ' g cogent reasons and by assignm' g
-. euficient” Veause will be fatal to the appellant who has
the court belatedly. It is also submitted by hiin that
K the appellant was served with the caveat petition on
D::e.1o.2oo’? as was clear from the postal acknowledgment and
Ba
we 12534 /2008
the appeal filed after two months on 18.12.2007 beyond the
period of 30 days was barred by time.
8. Counsel appearing for the iespondent
contended that this Writ petition is premature
passed by the court below on the appiieéttiog
the delay. He has further mat’e«3eneén ebsence V
of notice to all the msfnoedentslpdddfdejépppetitioneteddd heiwein have
insisted for passing an otdei filed under
Section 340 of He has placed
reliance on !3.’R1S1EtNA aeomzv GHOSH
vs SURAPiiT3′ 1925 eancm-as 684(1),
and mm or SATYANARAYANA, AIR 2007
SC 906.
heeled’-th_e___Iea1ned Counsel for the parties and on
the materials on record particularly the
by the lower Appefiate Court, I
am of the “eo:n.side1ed View that this Writ petition. is
H K The court below has not passed any order on the
japplioation filed under Section 5 of the Limitation Act seeking
T of delay. Since the petitioners herein have filed an
“appiieation under Section 340 of the Code of Criminal Pmceduze
fie
W? 12584 /2008
and have iasisted the court below to pass orders on the same,
the court below has passed the oider holding that the question
whether the respondent herein had made a false stateaieizt in
her afidavit stating that she had no H1«f;1;;ow1e«;igev’ ” ” 2
passed in the suit was a matter to be»._enqaix§ed
an enquiry. The court below
pmviding an opportlmity to the to in the
matter, it was impmger to application
filed under Section A» V t
10. There is below has directed
the parties to. t$1eV”»aj3t)1icafion filed seeking
oondonatiotitttot’ the enquiry is found
necessary V*t1’ie–~V.ap1o1£cafion fled under Section 340
of the Code of Whether the cause shown
‘vb3*.Athe’:o.:tes;3ontient “cotationation of delay of 30 days in filing
istfiieient or whether the appeal deserved to be
t disfiissed by time is a matter that the court ‘below
fis to coasider after hearing both the parties. The judment
by the zeamed Senior Counsel in support of his
___”oontentio11 that the explanafion ofiened does not constitute
. . A ‘4” cEnt cause cannot be accepted at this stage as it is for the
KK
WP 12584 /2003
10
lower Appellate Court to examine the fact situations and
consider the matter in the light of the explanation offemd.
Without the lower Appellate Court passing any order o1ff1″tl;1e {A
meal under Section 5 of the Limitation Act, this
pronounce on the merits of the said IA. Therefqie,
petitioxs. ‘being miscouccivcd deservesié 3.2:: Vflérntrner,
the writ petition is dismissed.
I