D. ABDULLAH SAB Vs. SYED ABDUL JABBAR

JUDGEMENT

(1.) Miscellaneous Case No. 3 of 2011 was filed on 30-4-2011, in the Vacation Court at Bellary, to set aside the decree passed on 25-7-2008 in O.S. No. 390 of 2008. Along with the said petition, I.A. No. 1 was filed under Section 5 of Limitation Act, 1963, to condone the delay in presenting the petition. The petitioner herein filed statement of objections and opposed I.A. No. 2 by filing a counter. The Court below having allowed I.A. No. 1 and condoned the delay, as per order dated 21-3-2014, feeling aggrieved, this writ petition was filed. Heard the learned Counsel on both sides and perused the writ petition record.

(2.) The Trial Court has committed a material error and irregularity in deciding I.A. No. 1, without recording the evidence, since I.A. No. 1 was opposed by filing a counter. In the counter filed, all the assertions made in the affidavit filed in support of the I.A. having been denied, there is need for the respondent herein, to adduce evidence.

(3.) Since there is need for adducing evidence, both on I.A. No. 1 and the main petition, the Court below ought to have posted the case for enquiry and permitted both the parties to adduce evidence i.e., both on the main petition as well as application seeking condonation of delay. The course of action which has been adopted by the Court below is wholly erroneous.