Saraswati and Others vs Neelawwa and Others

B. Manohar, J.—1. Petitioner in this revision petition is challenging the order dated 6th April, 2013 passed by the III Additional District Judge, Bijapur made in Civil Misc. No. 27/2012, wherein the application filed by the petitioners under Section 5 of the Limitation Act for condonation of delay of 2 years 10 days in filing civil miscellaneous petition to recall the order dated 17-03-2008.

It is the case of the petitioners that, one Sangamma who is the first respondent in the Miscellaneous petition filed O.S. No. 98/2003 seeking for partition and separate possession of the suit schedule property. In the plaint, it was contended that the suit schedule property is the ancestral property and the plaintiff is entitled for her share in the said property. After trial, that suit was decreed on 17th March 2008 declaring that the plaintiff who is the first respondent in the Miscellaneous petition is entitled for partition and separate possession of her 1/6th share in the suit schedule property by metes and bounds. It was further ordered that the plaintiff is also entitled for mesne profits from the date of suit. The defendants 3 to 5 in the suit, being aggrieved by the judgment and decree made in O.S. No. 98/2003 filed R.A. No. 63/2008 on the file of the Principal District Judge, Bijapur. During the pendency of the said regular appeal, the appellants filed a memo dated 31-3-2010 stating that due to the intervention of the elders, the first respondent i.e. the plaintiff in O.S. No. 98/2003 had agreed to receive Rs. 2,60,000/- towards her 1/6th share in the suit schedule property and the said amount has been paid before the Court and the plaintiff will give up her share in favour of appellant No. 2 and also requested the Court to dismiss the appeal as settled out of Court among the parties in appeal.

On the basis of the said memo, the court recorded the same in the order sheet and permitted the appellants to withdraw the said appeal and the first respondent in Regular Appeal i.e. the plaintiff in O.S. No. 98/2003 received a sum of Rs. 2,60,000/- towards her 1/6th share. Long thereafter, the appellants filed an application under Section 151 of CPC to recall the order dated 31-03-2010 contending that by misunderstanding, the said regular appeal has been withdrawn. They also filed one more application under Section 5 of the Limitation Act for condonation of delay of 2 years 10 days in filing the application for recalling the order dated 31-3-2010 made in R.ANo. 63/2008.

In pursuance of the notice issued by the Principal District Judge, Bijapur, the respondents No. 2, 3 and 5 in the said regular appeal entered appearance and filed objections to the said application contending that there is inordinate delay of 2 years 10 days. The appellants were fully aware of withdrawal of the appeal and they cannot file an application for recalling the order dated 31-3-2010. The first respondent in RA No. 63/2008, who was the plaintiff in O.S. No. 98/2003 and died.

The petitioners, in order to prove their case, examined the 4th petitioner/Lagamawwa as P.W.1 and on behalf of the respondents, the 2nd respondent herein was examined as R.W.1. The Trial Court framed necessary issues with regard to condonation of delay of 2 years 10 days in filing the application for recalling the order dated 31-3-2010. The Trial Court, after considering the oral and documentary evidence adduced by the parties has not accepted the contentions of the petitioners wherein they have stated that they are rustic villagers, they were not aware of dismissal of R.A. No. 63/2008, they came to know about the disposal of regular appeal only after receipt of notice in O.S. No. 329/2010 and 13 months after receipt of the notice, the application has been filed for recalling the order dated 31-3-2010. There is no fraud or misrepresentation on the part of anybody. In fact, two of the petitioners herein were present on that day and signed the order sheet and advocates on both sides have also signed the memo filed by the appellants in R.A. No. 63/2008. The Trial Court found that there is no bonafide in the claim made by the petitioners and inordinate delay of 2 years 10 days cannot be condoned. Accordingly dismissed the application filed under Section 5 of the Limitation Act and dismissed the miscellaneous petition. Being aggrieved by the said order, the present revision petition has been filed.

Sri. Sudheer Kulkarni, learned counsel appearing for the petitioners contended that the petitioners are rustic villagers and illiterate persons. The second petitioner was a minor. The parties were intended to withdraw the case only insofar as the first respondent i.e. Sangamma is concerned and not in respect of other respondents. They were under the bonafide impression that by paying Rs. 2,60,000/-, the appellants can purchase the share of the first respondent in R.A. No. 63/2008. However, the advocate has filed a memo to dismiss the appeal as settled out of the Court and that was not the intention of the parties. Further, only after receipt of notice in O.S. No. 329/2010 filed by respondent Nos. 2 to 4, they came to know about the withdrawal of R.A. No. 63/2008. The finding recorded in O.S. No. 98/2003 will be binding on the parties and that will adversely affect their case in O.S. No. 329/2010. Learned counsel submitted that for the mistake committed by the advocate, the petitioners cannot be punished. In support of his contention, he relied upon a judgment reported in , 2001(4) KLJ 369 in the case of SANGRAMAPPA v. SHANKARAPPA.

On the other hand, Sri. Ashok S. Kinagi, learned counsel appearing for respondents 1 to 4 argued in support of the order passed by the Tribunal contending that there is no fraud or misrepresentation on the part of the advocate appeared in R.A. No. 63/2008. Originally, Sangamma filed a suit seeking for partition of her 1/6th share. The Trial Court, after trial, decreed the suit on 17-03-2008. Being aggrieved by the said judgment and decree, regular appeal has been filed. During the pendency of the regular appeal, Rs. 2,60,000/- was paid to the first respondent who was the plaintiff in O.S. No. 98/2003 and the second appellant purchased the property right of the plaintiff. The appellants in R.A. No. 63/2008 are not illiterate persons. In presence of the parties themselves, their advocate had filed a memo to withdraw the regular appeal. After lapse of 2 years 10 days, the said order cannot be recalled and sought for dismissal of the revision petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order passed in Civil Misc. No. 27/2012 and other relevant records.

Petitioners are the appellants in R.A. No. 63/2008, wherein they have challenged the judgment and decree made in O.S. No. 98/2003. During the pendency of the said R.A., the claim of the first respondent in R.A. has been settled by paying Rs. 2,60,000/-. The second appellant in R.A. No. 63/2008 purchased the property right of the plaintiff. If there is any dispute among the co-defendants, it can be resolved in accordance with law. Two of the appellants were also present on 31-3-2010 and presented the memo and given a sum of Rs. 2,60,000/- to the plaintiff. In the memo itself, they have clearly mentioned that the issue has been settled between the parties. Memo filed on 31-3-2010 reads as under:

"MEMO

Herein, the appellants files memo as under:

That, due to intervention of elders the respondent No. 2 has received Rs. 2,60,000/- (Two lakh sixty thousand) towards her 1/&th share in the suit properties as decreed in O.S. No. 98/2003 of the court of Civil Judge (Sr.Dn.) B.Bagewadi. The amount is to be pain in the Court and hence given up the her share in favour of appellant No. 2.

Hence it is prayed that the Hon''ble Court be pleased to dismiss the appeal as settled out of the Court among the parties to this appeal.

Hence, this memo."

Hence, it is clear that the petitioners were fully aware of withdrawal of R.A. No. 63/2008. After a lapse of 2 years 10 days, an application has been filed under Section 151 of CPC for recalling the order dated 31-3-2010. I.A. No. 2 has also been filed under Section 5 of the Limitation Act for condonation of delay of 2 years 10 days in filing the said application.

The Trial Court after considering the matter in detail rejected the application holding that there is no bonafide in the claim made by the petitioners, since they were fully aware of withdrawal of R.A. No. 63/2008. I do not find any infirmity or irregularity in the said order. The issue settled in the year 2008 cannot be reopened at this length of time. The contention of the petitioners that appellants 1 to 4 are rustic villagers cannot be accepted. On 31-3-2010, two of the appellants were present and they have signed the order sheet and paid a sum of Rs. 2,60,000/- to the plaintiff to amicably settle the matter between the parties. One of the petitioners was minor. The petitioners cannot make allegations against the advocate who had appeared on behalf of the appellants in R.A. No. 63/2008 because in the presence of the appellants themselves, the memo was presented to the Court and sought permission of the Court to withdraw the R.A. Hence it is highly improper to make allegations against the advocate saying that he has not explained the consequences of filing the memo for withdrawal of R.A. No. 63/2008. Some of the family members have already filed O.S. No. 329/2010. It is open to the petitioners to defend their case in the said suit. The judgments relied upon by the petitioners are not applicable to the facts of the present case.

No ground is made out to set aside the order dated 06-04-2013 made in the Civil Miscellaneous No. 27/2012. Accordingly, the revision petition is dismissed.