1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2018 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.56738/2017(GM-CPC) BETWEEN: SMT. RAJESHWARI, W/O PUTTASWAMY, AGED ABOUT 56 YEARS, R/AT THAGYAMMANA EXTENSION, CHANNARAYAPATNA TOWN HASSAN DISTRICT PIN CODE-573116. REPRESENTED BY HER S P A HOLDER: C. CHANDRU S/O C. G. CHANNAIAH, AGED ABOUT 59 YEARS, R/AT THAGYAMMANA EXTENSION CHANNARAYAPATNA TOWN. HASSAN DISTRICT. PIN CODE-573116. PETITIONER (BY SRI B. P. HONAKHANDE, ADVOCATE) AND: 1. SHANKAR, S/O LATE NALLURAIAH, AGED ABOUT 56 YEARS, R/AT HOUSING BOARD COLONY, OPPOSITE TO FILTER HOUSE, HOLENARASIPURA ROAD, KASABA HOBLI, CHANNARAYAPATTANA TOWN, HASSAN DISTIRCT PIN CODE-573116. 2 2. C. N. DASAPPA, S/O NALLURAIAH, SINCE DECEASED BY HIS LRS; 2(a) SMT. JAYAMMA, W/O C. N. DASAPPA @ MARIYANNA, AGED ABOUT 55 YEARS, R/AT HOUSING BOARD COLONY, OPPOSITE TO FILTER HOUSE, HOLENARASIPURA ROAD, KASABA HOBLI, CHANNARAYAPATTANA TOWN, HASSAN DISTRICT, PIN CODE NO. 573116. 2(b) SMT. MANJULA, D/O C. N. DASAPPA @ MARIYANNA, W/O VENKATESH, AGED ABOUT 30 YEARS, R/AT KOUSHIK VILLAGE, SHANTHI GRAMA HOBLI, HASSAN TALUK AND DISTRICT, PIN CODE NO.573220. 2(c) SMT. SHARADA, D/O C. N. DASAPPA @ MARIYANNA, W/O MOHAN, AGED ABOUT 28 YEARS, R/AT HOUSING BOARD COLONY OPPOSITE TO FILTER HOUSE, HOLENARASIPURA ROAD, KASABA HOBLI, CHANNARAYAPATTANA TOWN, HASSAN DISTRICT, PIN CODE NO.573116. 2(d) SRI NAGA, S/O C. N. DASAPPA @ MARIYANNA, AGED ABOUT 25 YEARS, R/AT HOUSING BOARD COLONY, OPPOSITE TO FILTER HOUSE HOLENARASIPURA ROAD, KASABA HOBLI, CHANNARAYAPATTANA TOWN, 3 HASSAN DISTRICT PIN CODE NO.573116. 2(e) SRI MOHAN, S/O C. N. DASAPPA @ MARIYANNA, AGED ABOUT 23 YEARS, R/AT HOUSING BOARD COLONY, OPPOSITE TO FILTER HOUSE, HOLENARASIPURA ROAD, KASABA HOBLI, CHANNARAYAPATTANA TOWN, HASSAN DISTRICT, PIN CODE NO.573116. RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE ORDER DATED 2.8.2017 PASSED IN [CASE NUMBER] ON THE FILE OF CIVIL JUDGE, (SR. DN., ) VIDE ANNEXURE-A CHANNARAYAPATNA AND RESTORE FOR DISPOSAL IN ACCORDANCE WITH LAW BY EXCISING THE SUPERVISORY JURISDICTION VESTED IN IT; THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
It is an unfortunate case where the suit has been dismissed for default on 20.9.1997 because of lack of institutional responsibility to the party and the learned Counsel, who had appeared for the plaintiff in the suit.
2. The present petitioner, who is the plaintiff in [CASE NUMBER] filed a suit for specific performance and permanent injunction against the defendants in respect of the suit schedule property. The suit came to be dismissed for default on 25.8.1997. Thereafter, the Special Power of Attorney Holder filed [CASE NUMBER] under [SECTION] of the [ACT] before the Civil Judge (Sr.Dn.), Holenarasipura for setting aside the order of dismissal in the suit for default on 25.8.1997 and to restore the same for further evidence. The said Miscellaneous Petition came to be dismissed for default on 24.1.2000.
3. Thereafter, the Special Power of Attorney Holder of the plaintiff filed [CASE NUMBER] before the Civil Judge, Holenarasipura to set aside the order of dismissal in [CASE NUMBER] and to restore [CASE NUMBER] on 7.10.2002 before the Civil Judge, Channarayapatna, who transferred [CASE NUMBER] to the Miscellaneous Court. The matter was transferred to Channarayapatna and was renumbered as [CASE NUMBER]. It is unfortunate again that [CASE NUMBER] also came to be dismissed for default on 5.12.2002.
4. The Special Power of Attorney Holder then filed [CASE NUMBER] under [SECTION] of the [ACT] to set aside the dismissal order passed in [CASE NUMBER]. The Miscellaneous Court by the impugned order dated 2.8.2017 dismissed [CASE NUMBER]. Hence, the present writ petition is filed.
5. It is also relevant to state that the Civil Judge, Channarayapatna set aside the order dated 5.12.2002 and restored [CASE NUMBER] which is pending.
6. I have heard the learned Counsel for the petitioner.
7. Sri [ENTITY], learned Counsel for the petitioner contended that the impugned order passed by the trial Court dismissing Miscellaneous petition is totally without jurisdiction. He would further contend that in view of the [ACT] came to be amended by [ACT] effect from 22nd August, 2007, the Civil Judge (Sr.Dn.), Chennarayapatna had no jurisdiction to try [CASE NUMBER] on merits. He would further contend that the trial Court ought not to have dismissed the suit for default which was not a case warranting dismissal of suit for default. The Miscellaneous Court also dismissed [CASE NUMBER] for default which was filed for setting aside the dismissal also dated 25.8.1997 erroneously. Therefore, he contended that the impugned order passed by the trial Court is totally without jurisdiction and hence, sought for quashing of the impugned order passed by the trial Court by allowing the present writ petition.
8. I have given my anxious consideration to the arguments advanced by the learned Counsel for the petitioner and perused the material on record carefully.
9. It is not in dispute that the plaintiff filed a suit for specific performance to enforce the agreement dated 22.4.1993 and unfortunately, the said suit was dismissed for default on 25.8.1997. To restore the said suit, the Special Power of Attorney filed [CASE NUMBER] which also came to be dismissed on 24.1.2000. For restoration of [CASE NUMBER], [CASE NUMBER] came to be filed by the Special Power of Attorney. Subsequently, it was transferred, registered and re-numbered as [CASE NUMBER]. Unfortunately that suit also came to be dismissed on 5.12.2002 for default. For restoration of [CASE NUMBER] which was dismissed, another [CASE NUMBER] was filed. Thereafter [CASE NUMBER] was also filed for restoration of [CASE NUMBER] also came to be dismissed. The contention of the learned Counsel for the petitioner that in view of the amended provisions of [ACT], the Court had no pecuniary jurisdiction to proceed with the miscellaneous petition, cannot be accepted for the simple reason that it is not his case that inspite of bringing it to the notice of the Court the amendment of the Act that it had no jurisdiction, it had proceeded to decide the matter on merits and after contest, orders have been passed by the Miscellaneous Court on merits.
10. Infact, the present writ petition filed on the ground that though the trial Court had no jurisdiction to try the miscellaneous petition, it had proceeded to decide the case. The conduct/attitude of the litigant cannot be accepted. First of all this Court is afraid how the miscellaneous petition 11/1993 was restored invoking the provisions of [SECTION] of the [ACT]. The mistake on the part of the Counsel, who represented in [CASE NUMBER] which came to be dismissed for default against which [CASE NUMBER] filed was also dismissed for default on 24.1.2000 and another [CASE NUMBER] was also dismissed for default on 5.12.2002 which clearly indicates that the learned Counsel who represented the plaintiff in the suit and in miscellaneous petitions had no institutional responsibility. That is how the litigatnts loose faith and confidence in judicial system. Even after a lapse of 22 years, the plaintiff was not able to get restored the suit which was dismissed for default. Time and again filing miscellaneous petition one after another is nothing but daring raid on the Court by the party and his Counsel. The act of the petitioner and the Counsel who represented is condemnable. Law and professional ethics do not promote such practice. These acts are against majesty of law. The plaintiff and his Counsel acted in manner to cause colossal insult to justice and to concept of speedy disposal of civil litigation. Though the learned Counsel for the petitioner submits that in view of the amended provisions of the [ACT], the Miscellaneous Court at Channarayapatna had no jurisdiction, cannot be accepted since it was not the case before the Senior Civil Judge.
11. The trial Court considering the entire material on record has recorded a categorical finding that though the petitioner had filed suit - [CASE NUMBER], she has not shown diligence to prosecute the matter and the said suit was dismissed for non-prosecution and later on she filed [CASE NUMBER][CASE NUMBER] which was also dismissed for non-prosecution on 24.10.2000 and thereafter she has filed another petition bearing No.13/2000 which was also dismissed for non prosecution on 5.12.2012 and later on she has filed this petition on 7.12.2002 and in this case also, she has taken more than 8 years for taking steps against the respondents. As already discussed above, she has misused Court for her negligent acts and deeds and went on filing petitions one after another by wasting valuable time of the Court. She is neither interested in prosecuting the matter nor in taking steps against the respondents on the date fixed for taking steps. She has misused the Court machinery for her wrong acts and deeds. Even though, her suit bearing [CASE NUMBER] was dismissed for non prosecution and inspite of dismissal of [CASE NUMBER], she has not become alert in prosecuting the matter and shown her negligence in not taking interest to give her evidence. The said suit of the petitioner was dismissed for negligence. Even though she has stated in her affidavit that, her advocate sustained injuries in the road traffic accident, she has not given particulars regarding date, time and place of accident, name of the hospitals in which her advocate took treatment and not produced any documents for having taken treatment by her advocate in hospital and also not examined her advocate or doctor, who treated her advocate to show that on that day, her advocate sustained accidental injuries and unable to attend the Court. Even though she has stated that she was suffering from loose motion, she has not produced medical certificate about treatment taken by her and she has not examined the doctor, who treated her. In the absence of any materials to that effect and in view of the fact that she is totally negligent in prosecuting the matters, there are no grounds to allow the petition. If that kind of petitions is entertained, there will be no end to such false and frivolous litigations before the Court and party, who is negligent in prosecuting the matter should not be excused for her own willful deeds. Therefore, since there was no ground to allow the petition it was dismissed with costs of Rs.6,000/- on the petitioner. The same is in accordance with law.
12. The Hon'ble Supreme court while considering the principle of law that 'delay defeats equity' in the case of [PRECEDENT] at para-17 has held as under:
"17. It is also well settled principle of law that "delay defeats equity". Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal there against, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In [PRECEDENT], this Court held:
"16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction."
13. In view of the aforesaid reasons, the petitioner has not made out any ground to interfere with the impugned order passed by the trial Court exercising the powers under [SECTION] of the [ACT]. Accordingly, writ petition is dismissed with costs of Rs.10,000/- payable to the legal Service Authority, Bengaluru within a period of four weeks by both the Counsel as well as the plaintiff for protracting the matter for more than two decades (22 years).
Ordered accordingly.
Judge Nsu/-