Smt.kamal W/o. Gulab Singh Rajaput Vs. The Special Land Acquisition Officer - Court Judgment

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2024. KHC-D:3665 CRP No.100005 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE14H DAY OF FEBRUARY, 2024 R BEFORE THE HON'BLE MR JUSTICE V.SRISHANANDA CIVIL REVISION PETITION NO.100005 OF2020(LAC) BETWEEN: SMT.KAMAL W/O. GULAB SINGH RAJAPUT, AGED ABOUT73YEARS, OCC: RETIRED GOVERNMENT SERVANT, R/A: AZAD GALLI, BELAGAVI DIST : BELAGAVI-581108. …PETITIONER (BY SRI. G.N. NARASAMMANAVAR, ADVOCATE) AND: THE SPECIAL LAND ACQUISITION OFFICER, SAUNDATTI, NOW M.P.III DHARWAD-580003. …RESPONDENT THIS C.R.P. IS FILED UNDER SEC.115 OF CPC, PRAYING TO SET ASIDE THE ORDER

PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SAUNDATI IN LAC MISC.NO.13/2014 DATED0504.2019 BY ALLOWING THE REVISION PETITION WITH COSTS AND PASS SUCH OTHER RELIEF MAY GRANT IN THE CIRCUMSTANCES AND FACTS OF THE CASE, IN THE INTEREST OF JUSTICE.-. 2 - NC:

2024. KHC-D:3665 CRP No.100005 of 2020 THIS C.R.P., COMING ON FOR ORDER

S, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

Heard Shri. G. N. Narasammanavar, learned counsel for the revision petitioner.

2. Present revision petitioner is filed against the order passed on I.A. No.1 filed under Section 5 of the Limitation Act, came to be rejected. Consequently, the petition in LAC Miscellaneous No.13/2014 filed under Order XXI Rule 105 and 106 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’), is dismissed.

3. Office has raised objection with regard to maintainability of the petition.

4. However, Shri. G. N. Narasammanavar, learned counsel for the revision petitioner submits that lenient view may be taken and the Civil Revision Petition held to be maintainable and sought for over ruling the office objection.

5. In order to appreciate the arguments of the counsel for revision petitioner, it is just and necessary for this Court to culled out Order XXI Rule 105 and 106 of CPC.-. 3 - NC:

2024. KHC-D:3665 CRP No.100005 of 2020 “105. Hearing of application. (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.

106. Setting aside order passed ex parte, etc. (1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non- appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.-. 4 - NC:

2024. KHC-D:3665 CRP No.100005 of 2020 (2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party. (3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.

6. On close reading of Rule 106 of Order XXI, it is crystal clear that the time line under Order XXI Rule 106 of CPC is to be strictly adhered to and it cannot be condoned by filing an application under Section 5 of the Limitation Act.

7. View of this Court is supported by the judgment of the Hon’ble Apex Court in the case of Damodaran Pillai and others vs. South Indian Bank, reported in AIR2005SC3460 8. Relevant paragraphs of the said judgment reads as under; “11. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a restoration application would be the date of the - 5 - NC:

2024. KHC-D:3665 CRP No.100005 of 2020 order and not the knowledge thereabout. As the applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex- parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant.

21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation.

9. Applying the above principles of law to the facts of the case, since the statute itself prescribes time line and fixes the period of limitation to entertain a application filed under Order XXI Rule 105 of CPC, this Court is of the considered opinion that the dismissal of the petition is just and proper and the remedy of revision is not maintainable.-. 6 - NC:

2024. KHC-D:3665 CRP No.100005 of 2020 10. Accordingly, office objection is upheld and Civil Revision Petition is dismissed as not maintainable. Sd/- JUDGE SMM List No.:

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