VENKATESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) la. Ii is the application for recalling Order dated 28-10-1983, passed by the then acting chief Justice Hon'ble Mr. Justice v.s. malimath, in the two writ petitions viz., writ petition nos. 35806 and 35807 of 1982, whereby Hon'ble acting chief Justice had dismissed the above writ petitions on the ground that none appears and no steps have been taken. This application for recall or setting aside the Order of dismissal of the writ petition for default and non-prosecution had been moved on 6-10-1993, later on an application under Section 5 of limitation ACT for condonation of delay, in filing the recall application, had been moved in this court on 19-11-1993. This application for condonation of delay is la. I to the writ petition. During Pendency of these Aapplications la. V had been moved for substitution of the names of the heirs of respondent 4 who is alleged to have died on 10-1-1993 along with the application for setting aside the abatement and application for condonation of delay in moving the application for substitution. The application for condonation of delay in filing the substitution application and application for setting aside abatement are la. Iii and la. Iv, while application for bringing l.rs. Of respondent 4 is i.a.v.

(2.) application for recalling of Order dated 28-10-1983 is prima facie beyond time, it appears to have been moved on 6-10-1993 i.e., almost at the fagend of 10th year from the date of passing Order in the writ petition. So this application la. Ii for- recalling the Order has been beyond limitation. Ordinarily the period of 30 days is prescribed for moving an application for setting aside an Order of dismissal of a case for default. The present application appears to have been moved under Section 151 of Civil Procedure Code for the same purpose. So even if this application be taken as not under Order 9 of the Civil Procedure Code and as submitted by the counsel for the parties as it is covered by residuary clause, then at the most if anything can be said on behalf of the petitioner, an application had to be moved within 3 years under the residuary article 137. Though I do not decide this question as to whether limitation is of 30 days to move this application or 3 years, as it is not necessary for the purpose of the case, on account of the fact that application for recalling is delayed by more than 3 years. It is delayed by 10 years. The petitioner/applicant has moved an application for condonation of delay which is i.a. I as mentioned earlier. The jurisdiction to condone delay no doubt is statutory but discretionary and the discretion which has to be exercised is not arbitrary, but it has to be exercised judiciously under Section 5 of the limitation ACT and that can be exercised if the applicant shows sufficient cause for having not moved the application within time or at least on the last date of limitation and thereafter during the period earlier than the date of filing of the said application. It is also well-settled principle of law that person who wants to claim equitable jurisdiction of the court must come with clean hands and if a party makes incorrect allegations or asserts wrong facts then that party is not entitled to exercise of such jurisdiction in his favour. A perusal of the allegations at paragraph 2 per se shows that the petitioner/applicants allegation to the effect that petitioners did not have the knowledge of the Order of dismissal of the writ petition viz., Order dated 28.10.1983 till date of moving the application for recall or till before september 1993, per se appears to be false and incorrect, and it appears to be wrong that they were kept in dark. In paragraph 2 the petitioner has stated after having mentioned that or having stated that the petitioners were kept in dark of the dismissal of the writ petitions, and without indicating by whom he was kept in dark. The petitioner states "however, the first petitioner was advised to file another writ petition challenging the Order dated 7-12-1981 and writ petition No. 3250 of 198&, was filed challenging that Order and that writ petition came to be rejected on the ground that similar writ petition was already rejected etc." the certified copy of the Order dated 14-6-1993 passed in writ petition No. 3250 of 1988 is the Order in the writ petition filed by the petitioner 1 viz., venkatesh hegde and in this Order the Hon'ble judge has clearly mentioned "indeed the petitioner had challenged this very Order in writ petition nos. 35806 and 35807 of 1982 and those petitions having been disposed of, it is not open to the petitioner to challenge the same Order again". This per se should have led the petitioners to know that the writ petition nos. 35806 and 35807 of 1982 filed by these petitioners i.e., viz., the present writ petitions, in which application la. Ii for recall has been moved, had been dismissed and disposed of. Thus, from the certified copy of the Order in writ petition No. 3250 of 1988 which has been very fairly placed by the learned counsel for petitioner before me. It is quite clear that sometimes in june 1993 they had come to know that the present writ petitions had already been disposed of or dismissed, or if disposed of it had put them to investigation, what happened to those writ petitions when they were disposed of. If the petitioner did not take steps during that period they were negligent. There is another circumstance that falsifies this averment that petitioner had no knowledge of the dismissal of the present writ petition nos. 35806 and 35807 of 1982 and that circumstance is that in 1988 Sri venkatesh hegde according to own averment of the present petitioner/applicant had been advised to file another writ petition challenging the Order dated 7.12.1981. This per se shows that this fact of dismissal of the writ petition was within their knowledge and they filed the second writ petition on the advise of somebody. Whether that writ petition was maintainable or not I am not going to make any observation regarding that. Fact remains that even in 1988 when they filed writ petition No. 3250 of 1988 they did know the dismissal of present 2 writ petitions but they did not take step for moving an application for recalling or for the setting aside of the Order dated 28-10-1983 and the allegations made in this application for condonation of delay per se appear to be false and in fact appear to have been made intentionally, I mean to say knowing full well that they were incorrect statement, the said allegations were false. Counsel should have been more vigilant. It is the duty of the counsel to be fair to the court and if it appears to them that parties going to make false allegations, they should not become party to the wrongful act. Anyway I could have taken an action against the petitioner. At this stage learned-counsel for the petitioner submits, as the circumstances appear, it is proper that the application for recall la. Ii and application for condonation of delay be dismissed as not pressed and no further action be taken against the petitioner.

(3.) in the above circumstances, in view of the submission made by the counsel, these applications i.as. I and ii are dismissed and it is expected that counsels will be vigilant when moving the necessary applications in the case, that they do not innocently or otherwise party to the illegal or wrongful acts of the parties to the case. I do not issue notice for contempt against petitioners, but in future this court may take a strict view of such a situation.