State of Karnataka vs Dhanalakshamma

K.L. Manjunath, J.—This appeal is filed by the State of Karnataka challenging the legality and correctness of the judgment and decree passed by the Second Additional City Civil Judge, Bangalore, dated 6-3-1999 in O.S. No. 7896 of 1997. One Smt. Dhanalakshamma wife of H.G. Krishnappa filed the suit to declare her as an absolute owner of 6 acres, 20 guntas of land situated in Survey No. 43 of Valagerehalli Village, Kengeri Hobli and to further declare that the change of revenue entries to her name only to an extent of 1 acre of land as illegal and to grant a permanent injunction to restrain the appellants/defendants from interfering with her possession.

Though notice was served upon the appellants and Government Pleader was engaged, the case was not contested by the appellants. In the circumstances, the Trial Court considering the evidence let in by the respondent-plaintiff decreed the suit on 6-3-1999. Eight years thereafter, the present appeal is filed. Along with the appeal an application is also filed to condone the delay of 3965 days. To condone the delay of 3965 days, the appellant has not shown any cause except stating that there were no sufficient staff and on account of the same the appeal could not be filed.

A detailed objection is filed to the said application by the contesting respondent. According to them, the cause shown by the appellant to condone the delay of 3965 days cannot be considered as sufficient cause, because the appeal is filed by suppressing the fact of filing a petition under Order 9, Rule 13 of Civil Procedure Code, 1908, to set aside the decree granted in favour of the respondent by this Court.

According to the respondent to set aside the judgment and decree of the Trial Court dated 6-3-1999 the petitioner had filed a petition in Misc. Cvl. No. 369 of 1999 which petition came to be dismissed as abated by an order dated 15-4-2001. Thereafter, one more petition is filed under Misc. Petition No. 513 of 2001 to recall the order of abatement dated 15-4-2001 and the said application is still pending. Without disclosing the filing of application under Order 9, Rule 13 of Civil Procedure Code, 1908 and the dismissal of the same, the present appeal is filed without showing any cause and thus the affidavit filed by Tahsildar is incorrect and liable to be set aside.

It is further stated that the appellants filed an application for obtaining a copy of the judgment and decree on 30-3-2010, copy was received by the appellants on 1-4-2010, the appeal came to be filed on 12-4-2010. The application for condonation of delay was not filed along with the appeal, and it was filed one year after presenting the appeal. After filing of objections to the condonation of delay, the appellant has filed an application under Order 23, Rule 1(3) of CPC seeking permission to withdraw the appeal with liberty to file a fresh appeal on the same cause of action, under I.A. No. 1 of 2014.

We have heard the learned Counsel appearing for both the parties on I.A. No. 1 of 2014.

According to the appellant since the miscellaneous petition is pending, the appellants may be directed to withdraw this petition with liberty to file a fresh appeal on the same cause of action. The learned Counsel for the respondents submits that such a relief cannot be granted to the appellants because this Court cannot condone the delay of 3965 days. According to him, the appellants are at liberty to withdraw the appeal reserving liberty to pursue the petition under Order 9, Rule 13 of CPC but the appellants cannot be permitted to withdraw the present appeal with liberty to file a fresh appeal on the same cause of action, if the appeal is once withdrawn, the appellants cannot file an appeal afresh after disposal of the application under Order 9, Rule 13 of CPC. According to him, it is always open for the appellants to pursue both the remedies available to them either under Order 9, Rule 13 (Section 96 of CPC) or under Order 9, Rule 13 of CPC. If they succeed in one of the case, the other matter can be dismissed as withdrawn. But the appellant herein prays for liberty to pursue the petition under Order 9, Rule 13, and to withdraw present appeal with liberty to file a fresh appeal on the same cause of action if the application under Order 9, Rule 13 were to be dismissed, the appellants cannot be permitted to withdraw the appeal with liberty to file a fresh appeal on the same cause of action. He further submits even now it is open for the appellant either to withdraw the appeal unconditionally or to pursue both the appeal and the petition filed under Order 9, Rule 13 and subject to the outcome of the result of anyone of the petition which may be disposed off early, he can request this Court or the Trial Court to withdraw the other one. In the circumstances, he requests the Court to dismiss the appeal filed.

Having heard the Counsel for the parties, the facts in this case are not in dispute to the following circumstances:

"The respondent''s mother Smt. Dhanalakshamma had filed a suit. In the suit the appellants had engaged the service of a Government Pleader, which suit came to be decreed on account of non-production of the appellant. Aggrieved by the same, an application is filed under Order 9, Rule 13 to set aside the ex parte decree. The same is pending consideration. Nine years later, the present appeal is filed."

As rightly pointed out by Sri Ravishankar, the learned Counsel for the respondent no cause is shown to condone the delay of nine years by the appellants. Therefore, there are further possibilities for the appellant to loose this appeal on the ground of delay and latches. When once the appeal is dismissed without condonation of delay, the question of filing an appeal again on the same cause of action does not arise. The only remedy open to the appellant would be to pursue the application filed under Order 9, Rule 13 of CPC. The appellants seeking to withdraw the appeal with liberty to file a fresh appeal only to avoid the order which may be passed by this Court on the application to condonation of delay of 3965 days. Therefore, we are of the view that the liberty cannot be granted to file a fresh appeal and it is not the case of the appellant that the appellants are to be permitted to withdraw this appeal to file a fresh appeal since the appellants are going to loose this appeal on account of some technicalities. When there is no technical objections for maintaining the appeal, the question of withdrawing and permitting them to file a fresh appeal on the same cause of action, does not arise. In these circumstances, the appeal is dismissed without granting liberty to file a fresh appeal on the same cause of action.