Smt Umadevi and Santosh S.N. (Since minor represented, by His mother Smt. Umadevi) vs Smt. Dhakshanamma Malvi, As she is insane rep. by her next friend Husband Sri Shivarudrappa Malvi and Others

A.N. Venugopala Gowda, J.—Respondent No. 1 tiled O.S. No. 93/1998 against Respondent Nos. 2 to 6 and Sri S.V. Nagaraj, in the Court of Civil Judge (Sr. Dn.) at Davanagere, to pass judgment and decree of partition and separate possession of 1/4th share in the plaint ''A'' and ''B'' schedule properties and for mesne profits and consequential reliefs, Sri S.V. Nagaraj S/o. Sollapurada Veerabhadrappa was Defendant No. 1 in the suit. Defendant Nos. 1 to 5 were placed ex-parte. Defendant No. 6 having appeared through her learned advocate admitted the suit claim and submitted that, she is ready and willing to, pay the Court, fee and sought separate share for her. Issues having been framed, after trial, the suit was decreed on 06.03.2003, entitling the Plaintiff and the 6th Defendant for 1/8th share each, in the plaint schedule properties. A preliminary decree was ordered to be drawn. F.D.P. No. 54/2004 was filed thereafter.

Sri S.V. Nagaraj, Defendant No. 1 filed a petition under Order 3 Rule 13 of CPC to set aside the judgment and decree dated 06.03.2003 passed in O.S. No. 93/1998 by the learned 1st Addl. Civil Judge (Sr. Dn.). Davanagere. Petition having filed beyond time prescribed period of limitation, I.A. No. 1 was filed seeking condonation delay. Respondent No. 6 filed statement of objections and opposed the petition and also I.A. No. 1. Petitioner Sri S.V. Nagaraj having died, his wife and children prosecuted the petition by coming on record as legal representatives of the deceased Petitioner. Wife of Late S.V. Nagaraj, Smt Uma Devi deposed as P.W. 1. Exs.P. 1 to P. 9 were marked.

Considering the rival contentions arid the record of the case, the petition wag dismissed on the ground that, despite the knowledge of the decree having been passed, the miscellaneous petition was filed on 22.11.2004 and that there is deliberate and intentional delay and the delay, was not satisfactorily explained. This appeal by the legal representatives of the Petitioner is directed against the said order.

Sri. B.M. Siddappa, learned advocate appearing for the Appellants contended that the Court below has committed an error and illegality in passing the impugned order. Learned Counsel submitted that, on behalf of the Respondents, no rebuttal evidence was adduced and the evidence of P.W. 1 being credible, the delay ought to have been condoned and petition allowed, Learned Counsel submitted that the Court below has failed to exercise the jurisdiction vested in it and the dismissal of the petition being irrational and illegal, interference in the matter is called for.

I have perused the record. The point for consideration is:

Whether the Court below has committed any error and illegality in passing the impugned order?

O.S. No. 93/1998 was decreed on 06.03.2003. Misc. petition was filed by Defendant No. 1 Sri S.V. Nagaraj un 22.11.2004. There was a delay of 596 days in filing miscellaneous petition. I.A. No. 1 was filed u/s 5 of the Limitation Act, accompanied by an affidavit to condone the delay. The reasons assigned was that, only on 8th or 9th of November'' 2004, when show cause notice of F.D.P. No. 54/2004 was served, the feet that O.S. No. 93/1998 decreed on 06.03.2003 ex-parte came to their knowledge and they obtained copies relating to the case and having been advised to present, the petition, the miscellaneous petition was filed. The Respondent No. 6 denied the said claim by filing objections.

In the affidavit evidence of P.W.1-Uma Devi, the said facts stated in the affidavit accompanying I.A. No. 1 was reiterated. However, in the cross-examination of P.W.1, she had admitted that certified copies of the record of O.S. No. 93/1998 was applied on 03.11.2003. Exs.P.8 and P.9 are the certified copies of the judgment and decree passed in O.S. No. 93/1998. It can be seen therefrom that the; copies applied on 03.11.2003 was delivered on 02.01.2004. The miscellaneous petition, was filed on 22.11.2004. P.W.1 has categorically admitted the said facts in her cross-examination. By taking notice of Exs.P.8 and P.9 and the admissions of P.W.1, the trial Court has held as follows:

As rightly pointed out by the learned Counsel for the Respondent it could be borne out from the certified copies of the preliminary decree in O.S. No. 93/1998 and the order sheets of the said suit produced by the Petitioner that the Petitioner applied for the said copies on 03.11.2003, This act of the Petitioner clearly indicates Thai the preliminary decree passed in favour of the Respondents was very much within the knowledge of the petit inner much earlier to even filing of the F.D.P. No. 54/2004. That apart it is relevant to note the date of filing of the present petition. The present petition Under Order 9 Rule 13 of CPC along with the application for condoning the delay has been moved before this Court on 22.11.2004. From this it becomes further clear that even after obtaining the certified copies of the preliminary decree and the order sheet of O.S. No. 93/1098 on 02.01.2004 the Petitioner kept silent till 22.11.2004. For what reasons the said silence was maintained is not at all explained by the Petitioner. The P.W.1 i.e., Petitioner No. 1(a) has clearly stated in her cross-examination that from 06.03.2003 till 22.11.2004 there was absolutely no difficulty for her to file the present petition. Then the filing of the preset petition only on 22.11.2004 is clearly after causing deliberate and intentional delay after having waited for the 1st Respondent to file the final decree proceedings on the basis of the preliminary decree. As such having given thoughtful consideration to entire records in the file, in the light of the contentions of the Petitioner I am of the view that the Petitioner has not at all satisfactorily explained the delay.

The delay in filing the application for condonation of delay is considerable and the onus to show that sufficient cause exists for condonation of delay lies on the Appellants. It is clear from I.A. No. 1 and evidence of P.W.1 that the Petitioner S.V. Nagaraj was negligent in approaching the Court for relief. Besides, he did not approach the Court with clean hands. The correct facts were not stated and there is material suppression. Approaching the Court with unclean hands is a ground for rejection of application seeking condonation of delay. Want of bonafides on the part of S.V. Nagaraj is apparent. Despite being aware of the decree passed against him, the miscellaneous petition was not filed within time. Sufficient cause for condonation of delay having not been made out, the Court below has passed the impugned order.

The findings recorded by the trial Court in the impugned order being with reference to the evidence on record, the same cannot be termed as either perverse or illegal. Since the petition was filed beyond the prescribed period of limitation and the delay was not satisfactorily explained, the Court below is justified in dismissing the petition as barred by limitation.

In the result, the appeal fails and shall stand dismissed.

No costs.