H.Guruswamy vs A. Krishnaiah Since Deceased By Lrs

2025 INSC 53 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 317 OF 2025 (@Petition for Special Leave to Appeal(C)No.9719/2020)

H.GURUSWAMY & ORS. ….APPELLANTS(s)

VERSUS

A. KRISHNAIAH SINCE DECEASED BY LRS. ….Respondent(s)

O R D E R

1. This appeal arises from the judgment and order passed by the High Court of Karnataka at Bengaluru dated 30.01.2020 in Misc. First Appeal No. 7220 of 2014 filed under Order 43 Rule 1(d) of the Civil Procedure Code, 1908 (for short, “the CPC”) by which the order dated 05.08.2014 passed in Misc. Case No. 223 of 2006 on the file of the XIV Additional City Civil Judge, Bengaluru rejecting the application filed under Order 9 Rule 13 CPC came to be set aside and thereby the appeal was allowed.

2. The facts giving rise to this appeal may be summarised as under:

Signature Not Verified

VISHAL ANAND Date: 2025.01.10 a. The suit schedule property bearing Sy. No. 1/11 situated Digitally signed by 19:32:46 IST Reason:

at Byrasandra, Bangalore, Karnataka measuring 45 yards

1 East to West and 55 yards North to South was purchased

by one Venkatappa in the year 1916. Thereafter, the said

Venkatappa sold a portion of the suit property and

retained the balance portion measuring 45 yards East to

West and 27.5 yards North to South. Vide a registered

family partition, the suit schedule property came to be

divided between Venkatappa and Muniga @ Chikonu (Brother

of Venkatappa) wherein Venkatappa had received 29

Ankanas along with 1/3rd share and Chikonu had received

10 Ankanas of house along with 2/3rd share.

b. A suit for injunction being O.S No.615/1960 came to be

filed by Venkatappa against his family members which

came to be subsequently withdrawn on or about 14.06.

1965.

c. Initially one C.R. Narayana Reddy had filed a suit for

specific performance against the appellants herein being

O.S. No. 33/1971 with respect to the land along with a

house in Byrasandra Village before the Court of the

Civil Judge, Civil Station, Bangalore which came to be

disposed of vide Judgment and Order dated 30.08.1971

with a direction to the appellants herein to refund the

earnest amount that had been paid to them.

d. The deceased Respondent No.1 herein namely Sri.

A.Krishnaiah had impleaded himself as Defendant No. 14

2 in O.S No.33/1971 claiming to have purchased the suit

property from the Defendants No.3 to 13 respectively in

O.S. No.33/1971. The Civil Court had recorded a

categorical finding that the conduct of the deceased

Respondent No.1 did not seem to be bona fide and that

the sale in his favour was hit by the doctrine of lis

pendens and that the deceased Respondent No. 1 did not

seem to be a bona fide purchaser and was not entitled to

any relief with regard to the suit property.

e. Thereafter on the very same cause of action, the

deceased Respondent No. 1 filed O.S. No. 104/1972

seeking similar reliefs against the appellants. The said

suit came to be dismissed on merits vide Judgment and

Order dated 08.12.1975.

f. Despite failing in two rounds of proceedings and not

challenging the Orders passed in O.S. No.33/1971 and O.S

No.104/1972, the deceased Respondent proceeded to file

yet one another suit for possession and other reliefs by

way of O.S. No.603/1977 before the Court of the Civil

Judge, Bangalore City. The said suit came to be

eventually renumbered as O.S. No. 1833/1980.

g. The O.S. No.1833/1980 came to be dismissed on the first

occasion for default in the year 1983. In lieu of the

same, the Respondents herein had filed Misc. Petition

3 No.1063/1984 seeking to restore the said suit which came

to be allowed in the year 1984. Thereafter, the

Defendant No.4 in O.S. No.1833/1980 namely Shri.

Nagaraja passed away on 04.12.1999. The Respondents

having come to know of the same and having been granted

sufficient opportunities on 06.03.2000, 18.07.2000 and

22.08.2000 respectively, failed to bring the legal heirs

of the Defendant No.4 on record as a consequence of

which, the O.S. No.1833/1980 came to be dismissed as

having stood abated vide Order dated 22.08.2000.

h. The Respondents herein/Plaintiffs in their application

for recall dated 06.03.2006 stated that the wife of the

Deceased Respondent No. 1 namely Smt. Jayalakshmi G. who

is one of the Respondents/Plaintiffs had been suffering

from some ailment and had to be admitted in hospital on

09.02.2000. She also had to undergo Angioplasty on

27.09.2003 and that the Respondents came to receive the

certified copy of the Order dated 22.08.2000 on

26.08.2005. However, thereafter, the Respondents

proceeded to file applications under Order 22 Rule 4,

Order 32 Rule 1 & 2 and Order 22 Rule 9 respectively

before the Trial Court in O.S. No. 1833/1980 seeking to

set aside the abatement and bring the legal heirs on

record. However, the same came to be dismissed by way of

4 Order dated 16.11.2005 with liberty to the Respondents

to file an application for recall.

i. Despite the above, the Respondents proceeded to

challenge the Order dated 16.11.2005 before the High

Court, in W.P No.26660/2005 which came to be dismissed

as well.

j. It is only thereafter on 06.03.2006 that the Respondents

proceeded to file an application for recall in Misc.

Case No.223/2006 before the Trial Court. The Trial Court

vide a detailed Order dated 05.08.2014 dismissed the

Misc. Case No.223/2006 holding as under:

a) that the rights of the deceased Respondent No.1 had

already been decided much prior in the suit for specific

performance in O.S. No.33/1971 itself wherein it had

been held that the deceased Respondent No. 1 was not a

bona fide purchaser and that a similar suit in O.S. No.

104/1972 which arose out of the same cause of action had

also been dismissed on merits.

b) that all the Respondents are educated and there was

no impediment for the Respondents to obtain the

certified copies in O.S. No. 1833/1980 at the earliest

point of time.

c) that the Respondents had failed to assign any

sufficient cause for not filing the application till

5 2006 and moreover, the trial court noted that the cause

shown by the Respondents also appeared to be doubtful.

Furthermore, it was held that there is an inordinate

delay of 6 years in filing the application for recall

and the cause shown was insufficient.

d) that the Respondents despite having obtained the

certified copies on 26.08.2005, had only filed the Misc.

No.223/2006 on 03.06.2006 and the Respondents had failed

to explain their delay in filing the petition.

e) that the suit itself is hit by res judicata as the

matter in the suit in the present suit and that of O.S.

No.33/1971 were one and the same wherein there were

specific findings that the Deceased Respondent No. 1 was

not a bona fide purchaser and was not entitled to any

relief. The court also observed that the present

application for recall was barred by limitation and

furthermore, the suit in O.S. No.104/ 1972 had been

dismissed on merits as well. That the Respondents had

not approached the Court with clean hands and had abused

the process of law.

3. Being aggrieved with the above, the Respondents

challenged the Order dated 05.08.2014 before the High

Court in W.P No.7220/2014 wherein the High Court allowed

the Writ Petition thereby condoning the delay of about

2200 days.

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4. In such circumstances referred to above, the appellants

are here before this Court with the present appeal.

5. Mr. Anand Sanjay M. Nuli, the learned Senior counsel

appearing for the appellants submitted that the High

Court proceeded to condone the delay of about 2200 days

without adverting to any of the reasons assigned by the

Trial Court while rejecting application filed for

recall.

6. He submitted that the High Court by its impugned order

could be said to have proceeded to revive a suit which

had been instituted in the year 1977 i.e., a suit which

had been instituted about 48 years ago and is still at

the stage of leading evidence.

7. He submitted that there is a delay of six years in

filing the application for recall itself. He pointed out

that this is the second instance that the suit came to

be dismissed due to negligence and callous attitude on

the part of the respondents.

8. In such circumstances referred to above, he prayed that

there being merit in his appeal, the same may be allowed

and the impugned judgment and order passed by the High

Court be set aside.

9. On the other hand, Mr. Rajesh Mahale, the learned Senior

counsel appearing for the respondents submitted that no

7 error not to speak of any error of law could be said to

have been committed by the High Court in passing the

impugned order. He would submit that all that the High

court has done is to condone the delay with a view to do

substantial justice between the parties.

10. In such circumstances referred to above, he prayed that

there being no merit in this appeal, the same may be

dismissed.

11. Having heard the learned counsel appearing for the

parties and having gone through the materials on record,

the only question that falls for our consideration is

whether the High Court committed any error in passing

the impugned judgment and order.

12. We take notice of the following glaring features of the

matter:

(i) The original suit is of the year 1977. The said suit

came to be re-numbered as Original Suit No. 1833 of

1980. It has been 48 years that the suit is pending

for recording of evidence.

(ii) The Original Suit No. 1833 of 1980 came to be

dismissed for default in the year 1983. The same was

restored in 1984.

(iii) The defendant No. 4 in Original Suit No. 1833 of

1980, namely, Nagaraja passed away on 4.12.1999.

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(iv) The respondents herein were granted opportunities on

6.03.2000, 18.7.2000 and 22.8.2000 respectively to

bring the legal heirs of the defendant No. 4 on

record. Having failed to do so the suit ultimately

came to be dismissed as having stood abated.

(v) The rights of the deceased respondent No. 1 had

already been decided in the suit filed for specific

performance i.e. the Original Suit No. 33 of 1971.

(vi) The respondents having obtained the certified copies

on 26.8.2005 preferred the Misc. Case No. 223 of

2006 on 06.03.2006.

(vii) Indisputably, there is a delay of 6 years (about

2200 days) in filing the application for recall

itself.

13. We are at our wits end to understand why the High Court

overlooked all the aforesaid aspects. What was the good

reason for the High Court to ignore all this? Time and

again, the Supreme Court has reminded the District

judiciary as well the High courts that the concepts such

as “liberal approach”, “Justice oriented approach”,

“substantial justice” should not be employed to

frustrate or jettison the substantial law of limitation.

14. We are constrained to observe that the High Court has

exhibited complete absence of judicial conscience and

9 restraints, which a judge is expected to maintain while

adjudicating a lis between the parties.

15. The rules of limitation are not meant to destroy the

rights of parties. They are meant to see that the

parties do not resort to dilatory tactics but seek their

remedy promptly.

16. The length of the delay is definitely a relevant matter

which the court must take into consideration while

considering whether the delay should be condoned or not.

From the tenor of the approach of the respondents

herein, it appears that they want to fix their own

period of limitation for the purpose of instituting the

proceedings for which law has prescribed a period of

limitation. Once it is held that a party has lost his

right to have the matter considered on merits because of

his own inaction for a long, it cannot be presumed to be

non-deliberate delay and in such circumstances of the

case, he cannot be heard to plead that the substantial

justice deserves to be preferred as against the

technical considerations. While considering the plea for

condonation of delay, the court must not start with the

merits of the main matter. The court owes a duty to

first ascertain the bona fides of the explanation

offered by the party seeking condonation. It is only if

the sufficient cause assigned by the litigant and the

10 opposition of the other side is equally balanced that

the court may bring into aid the merits of the matter

for the purpose of condoning the delay.

17. We are of the view that the question of limitation is

not merely a technical consideration. The rules of

limitation are based on the principles of sound public

policy and principles of equity. No court should keep

the ‘Sword of Damocles’ hanging over the head of a

litigant for an indefinite period of time.

18. For all the foregoing reasons this appeal succeeds and

is hereby allowed.

19. The impugned order passed by the High Court is set aside

and that of the Trial Court dated 05.08.2014 passed in

Misc. No. 223 of 2006 is hereby restored.

……………………………………………..J. (J.B.PARDIWALA)

……………………………………………..J. (R.MAHADEVAN)

New Delhi.

8th January, 2025.

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