The High Court
Case Details
- 1 - NC: 2025:KHC:10858 RSA No. 59 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 59 OF 2025 (POS) BETWEEN: SRI BASAPPA S/O BHARMAPPA AGED ABOUT 76 YEARS, AGRICULTURIST, R/AT INDIRANAGARA, GAJANUR-MULLAKERE SHIVAMOGGA TALUK AND DISTRICT-577202 (BY SRI. VIJAYA KUMAR T M., ADVOCATE) AND: SRI. BASAVARAJAPPA S/O THIMMA BHOVI AGED ABOUT 56 YEARS, AGRICULTURIST, R/AT INDIRANAGARA, GAJANUR-MULLAKERE SHIVAMOGGA TALUK AND DISTRICT-577202 …APPELLANT …RESPONDENT THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.12.2022 PASSED IN RA NO.6/2019 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.11.2018 PASSED IN OS NO.537/2009 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10858 RSA No. 59 of 2025 CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 15.12.2022 passed in R.A.No.06/2019 by the learned II Additional
Legal Reasoning
Senior Civil Judge and JMFC, Shivamogga, confirming the judgment and decree dated 27.11.2018 passed in O.S.No.537/2009 by the II Additional Civil Judge and JMFC, Shivamogga. 2. For convenience, the parties are referred to, based on their rankings before the trial court. The appellant was the defendant, and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit for relief of the declaration of title and a perpetual injunction against the defendant. It is the case of the plaintiff that the plaintiff is the absolute - 3 - NC: 2025:KHC:10858 RSA No. 59 of 2025 owner in possession of suit A schedule property i.e., the property bearing Sy.No.67 of Gajanur Mullakere village, Shimoga taluk, which was granted to him under Darkhast to the extent of 2 acres and sagavali chit was issued to him. Based on the sagavali chit, the name of the plaintiff was entered in the revenue records. Since then, he has been in possession and cultivation of the entire extent of 2 acres of land. The defendant started interfering with his peaceful possession and enjoyment, he gave an application to the Tahsildar to measure the land. Accordingly, the Tahsildar ordered the measurement of his property and the same was measured in the defendant’s presence. After the survey, it was found that the defendant had encroached 16 guntas of land in the suit A schedule property, which is described as suit B schedule property. At the time of Hadbasth, the defendant was also present at the spot. Thereafter, he obtained the certified copies from the Tahsildar office and approached the defendant to vacate and hand over the possession of the encroached portion of suit ‘A’ schedule property. The - 4 - NC: 2025:KHC:10858 RSA No. 59 of 2025 defendant, instead of vacating the land in B schedule property, filed a suit in O.S.No.364/2009 on the file of I Additional Civil Judge, Shivamogga. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and perpetual injunction. Accordingly, prays to decree the suit. 4. The defendant filed a written statement denying
Legal Reasoning
the averments made in the plant. It is contended that the defendant is the absolute owner of land bearing Sy.Nos. 68 and 69 measuring 4 acres, which he purchased from one Mallappa S/o Yallappa under a registered sale deed dated 18.11.1989. The plaintiff, is the neighbourer, is unnecessarily trying to trespass and interfere with the defendant’s possession and enjoyment of his property. Hence, he filed a suit in O.S.No.364/2009. It is contended that the plaintiff is not in possession and enjoyment of the suit schedule property. Hence, prays to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the relevant issues. - 5 - NC: 2025:KHC:10858 RSA No. 59 of 2025 6. The trial court, after recording the evidence, hearing on both sides and on the assessment of the oral and documentary evidence, decreed the suit of the plaintiff vide judgment dated 27.11.2018. 7. The defendant, aggrieved by the judgment and decree passed in O.S.No.537/2009, preferred an appeal R.A.No.6/2019 on the file of the learned II Additional Senior Civil Judge and JMFC, Shivamogga. The first Appellate Court, on reassessment of the oral and documentary evidence, dismissed the appeal vide judgment dated 15.12.2022. 8. The defendant, aggrieved by the impugned judgments, filed this regular second appeal along with an application in I.A.No.1/2025 for condonation of delay of 667 days in filing the regular second appeal. 9. The appellant/defendant, in support of an application, filed an affidavit stating that he is about 76 years, since his health was not well and the doctor advised - 6 - NC: 2025:KHC:10858 RSA No. 59 of 2025 him to take rest, he could not move to Bangalore to meet his counsel to prefer an appeal. Thus a delay has been caused in filing an appeal. Hence, prays to allow I.A.No.1/2025. 10. Heard the arguments of the learned counsel for the defendant. 11. Learned counsel for the defendant submits that the appellant/defendant is aged about 76 years old, and because of his old age, is suffering from an ailment, and he could not file an appeal within time. He submits that the defendant could not file an appeal within time because of the aforesaid reasons. Accordingly, prays to allow I.A.No.1/2025. 12. Heard and considered the submissions of the learned counsel for the defendant. 13. The defendant, in support of his contention, has not produced any medical records. There is an inordinate delay on the defendant’s part in approaching this Court. - 7 - NC: 2025:KHC:10858 RSA No. 59 of 2025 The defendant has not explained the delay satisfactorily. Therefore, the doctrine of delay and laches should not be lightly brushed aside. The Court should bear in mind that while exercising jurisdiction, it has the duty to protect the right of the citizen. However, simultaneously it has to keep itself alive to the primary principle that when a person without any reasons approaches the Court at their own leisure or pleasure, the Court would be under a legal obligation to scrutinize, whether the lis at a belated stage should be entertained or not. It may be noted that the delay comes in the way of equity. In certain circumstances delay and laches may not be fatal, but in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. The delay does bring in hazards and causes injury to the lis. A Court is not expected to give indulgence to such - 8 - NC: 2025:KHC:10858 RSA No. 59 of 2025 indolent persons - who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. Thus, on the present case there is an inordinate delay in filing the appeal. Such inordinate delay of 667 days in filing second appeal does not deserve any indulgence. Hence, on the ground of delay and laches, the appeal is liable to be dismissed at the very threshold. The Hon'ble Apex Court in the case of CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS VS. T.T.MURALI BABU reported in 2014(4) SCC 108, declined to condone the delay of four years in approaching the Court. The Hon'ble Apex Court in another case of MAJJI SANNEMMA @ SANYASIRAO VS. REDDY SRIDEVI & ORS., reported in (2021) 18 SCC 384, relying on the judgment of the said Court, in the case of BASAVARAJ AND ANOTHER VS. SPECIAL LAND ACQUISITION OFFICER reported in (2013)14 SCC 81 has observed as follows: “The expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party.” It is further observed that, “Even though limitation may harshly affect the rights of a - 9 - NC: 2025:KHC:10858 RSA No. 59 of 2025 party but it has to be applied with all its rigour when prescribed by statute.” It is further observed that,- “In case a party has acted with negligence, lack of bonafide or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions.” It is observed that, “Each application for condonation of delay has to be decided within the framework laid down by this Court”. It is further observed that, “If Courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to the legislature.” 14. The Hon'ble Apex Court has declined to condone the delay of 1011 days in preferring the second appeal. Further, in the case of LINGESWARAN ETC. VS. THIRUNAGALINGAM IN SPECIAL LEAVE TO APPEAL (C) NOS.2054-2055/2022 disposed of on 25.02.2022, Hon’ble Supreme Court held that when it is found that the delay is not properly explained, the application to condone - 10 - NC: 2025:KHC:10858 RSA No. 59 of 2025 the delay is required to be dismissed. The Hon'ble Apex Court declined to condone the delay of 465 days. 15. Considering the law declared by the Hon'ble Apex Court in the above cases, the defendant has not made out a sufficient cause to condone the delay of 667 days in filing the second appeal. Accordingly, I.A.No.1/2025 filed seeking condonation of delay is
Decision
dismissed. Consequently, the appeal is dismissed. In view of the dismissal of the appeal, I.A.No.2/2025, does not survive for consideration and is accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS