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Sajjeda Veeranna Vs. Gownder Erasayamma - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1364 of 1971
Judge
Reported inAIR1972Kant238; AIR1972Mys238
ActsMysore Land Reforms Act, 1962 - Sections 115 and 122; Limitation Act, 1963 - Sections 5; Mysore Land Reforms Act, 1961 - Sections 14; Code of Civil Procedure (CPC), 1908 - Order 20, Rule 1
AppellantSajjeda Veeranna
RespondentGownder Erasayamma
Appellant AdvocateM.R. Achar, Adv.
Respondent AdvocateT. Venkanna, Adv.
DispositionPetition allowed
Excerpt:
.....of the market value of the seized vehicle does not arise. impugned order was quashed. - in my view, in cases like the present one when date of judgment is notified to the party or his pleader, the limitation starts from the date of the order under the provisions of section 122 of the act. the view, therefore, taken to the contrary by the learned appellate judge is clearly unsustainable. this is a case in which the learned appellate judge, on the contrary, clearly overlooked what was required to do i. in the present case, as the learned appellate judge has totally failed to consider the material aspect of the matter, it has to be held that there is material irregularity in the exercise of discretion vested in him by law......april 1969 and made an application for condonation of delay if any. in preferring the appeal. the learned appellate judge heard the application and the appeal and came to the conclusion that the question of limitation in filing the appeal does not arise and he further observed that even if there is any delay in preferring the appeal, there is sufficient cause for condoning the delay and it is accordingly condoned. accordingly the learned appellate judge allowed the appeal and set aside the order of the trial court. it is the correctness of this order that is challenged in this revision application.2. two questions arise for consideration in this petition. they are (1) whether the appeal filed before the appellate court was barred by limitation (2) whether the learned appellate judge has.....
Judgment:
ORDER

H.B. Datar, J.

1. The landlord is the petitioner in this revision application. A petition for resumption of land under Section 14 of the Mysore Land Reforms Act. 1961 was filed. That case was fixed for arguments. Arguments were heard on 6th April 1968 and the case was posted for pronouncement of judgment on 10-4-1968. The learned Judge, on 10-4-1968 pronounced the order granting the claim of landlord for resumption of land to the extent of 'half the area in question. The tenant thereafter preferred an appeal before the appellate Court on 14th April 1969 and made an application for condonation of delay if any. in preferring the appeal. The learned appellate Judge heard the application and the appeal and came to the conclusion that the question of limitation in filing the appeal does not arise and he further observed that even if there is any delay in preferring the appeal, there is sufficient cause for condoning the delay and it is accordingly condoned. Accordingly the learned appellate Judge allowed the appeal and set aside the order of the trial court. It is the correctness of this order that is challenged in this revision application.

2. Two questions arise for consideration in this petition. They are (1) Whether the appeal filed before the appellate court was barred by limitation (2) whether the learned appellate Judge has applied his mind to the question whether the delay in filing the appeal should be condoned.

3. The case was posted for arguments, as already stated on 6th April 1968. After hearing the arguments the Advocates were notified by the learned trial Judge that the judgment would be pronounced on the 10th April 1968. To the proceedings initiated under the Mysore Land Reforms Act, the provisions of Order 20. Rule 1 of the Code of Civil Procedure are applicable. It is provided therein that:--

'The court, after the case has been heard shall pronounce judgment in open court, either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders'.

As required by this provision, as the Judgment was proposed to be pronounced on a future date, the court fixed the date and gave notice to the parties that the judgment would be pronounced on 10-4-1968. When such notice is given, it has been held by the High Court of Rajasthan in Thakursing v. Bhaironlal, as under:--

'When particular dates for the delivery of judgment were fixed in Court on the dates fixed, the parties ought to appear on those dates and if they do so they would have notice of the dates fixed for the delivery of judgment. I do not think that in the circumstances of the case it can be said that any breach of Rule 1 of Order 20. Civil P. C. was committed by the learned Munsiff'.

What is stated in Section 122 of the Mysore Land Reforms Act, is that the limitation starts from the date of the order when the party or the legal practitioner appearing on his behalf is present and in other cases within a period of sixty days from the date on which the order is communicated to the party by post. It was submitted that as in the present case, the Advocate appearing for the tenant was not present when the order was pronounced, the limitation starts only as provided under the latter part of Section 122 of the Act.

I am unable to accept this submission. When the party or the Advocate appearing for the party has been notified of the date for pronouncing the judgment on the last date of hearing, it was the duty of the party and the advocate appearing for the party to be present in court on that date. By remaining absent at the time the judgment is pronounced, it cannot be contended that the latter part of Section 122 of the Act applies, as the party or the legal practitioner appearing on his behalf is not present. In my view, in cases like the present one when date of judgment is notified to the party or his pleader, the limitation starts from the date of the order under the provisions of Section 122 of the Act. Further it is important to note that in the present case, after the judgment was pronounced on 10th April 1968. an application for a certified copy of the judgment was filed for preferring an appeal on 11-4-1968 itself. The legal practitioner of the party became duly aware of the order and so. the limitation starts from the date on which the judgment was pronounced by the court, of which due notice has been given to the parties. The view, therefore, taken to the contrary by the learned appellate judge is clearly unsustainable.

4. The learned Judge also considered whether there was delay in filing the appeal and if so whether the delay should be condoned. For that purpose, the learned Judge was required to eee as to whether there was sufficient cause shown by the tenant for remaining at Hubli between November 1968 and 15th March 1969, and the reason for filing the appeal only on 14-4-1969 when the appellant returned back to his place on 15-3-1969.

5. The learned Appellate Judge in para 16 of his order has observed as follows:--

'On the facts and circumstances of the case, it appears to me that even if there were to be any delay in preferring the appeal, there is sufficient cause for condoning the delay and it is accordingly condoned'.

From the above it can be seen that the learned Appellate Judge has not at all applied his mind to the facts or the circumstances of the case while condoning the delay in preferring the appeal. It was however, contended by the learned counsel for the respondent that this court has no jurisdiction to interfere with the discretion exercised by the court below. Reliance was placed on the decision in : [1964]3SCR495 , (Manindra Land and Building Corpn. Ltd. v. Bhutnath Baner-jee) wherein it has been held as follows:

'It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115. to question the findings of fact recorded by a Subordinate Court. Section 115 applies to cases involving questions of jurisdiction i. e. questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact In which questions of jurisdiction are not involved'.

In my view the principles laid down by the Supreme Court in the case referred to above do not apply to the facts of the present case. The learned Appellate Judge, in the present case, did not record his finding after considering the material on record and he hag not at all applied his mind while exercising the discretion vested in him. This is a case in which the learned appellate Judge, on the contrary, clearly overlooked what was required to do i. e. whether the tenant has shown sufficient cause for her absence between November 1968 to March 1969 at Hospet though she was discharged from the hospital at Hubli on 3-12-1968 and whether even after she came to her Place (Hospet) on 15-3-19159 the reason for filing the appeal only on 14-4-1969 i. e., nearly a month thereafter. In the present case, as the learned appellate Judge has totally failed to consider the material aspect of the matter, it has to be held that there is material irregularity in the exercise of discretion vested in him by law. Therefore. I have no other alternative but to remit the case back to the learned appellate Judge for fresh disposal in accordance with law.

6. In that view, this revision application is allowed, the order passed by the learned Appellate Judge is set aside and the learned Appellate Judge is directed to re-hear I A. No. 3 in Misc. Appeal No. 7 of 1970 and dispose of the same in accordance with law.

7. In the circumstances, there will be no order as to costs.


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