R. JERRY @ JERRI VICTOR v. SRI K. SAMPATH KUMAR

The present appeal is preferred by the defendants assailing the judgment and decree dated 23.02.2019 in O.S.No.1868/2017 on the file of XXVII Additional City Civil Judge, Bengaluru City (hereinafter referred to as ‘trial Court’ for short). By the judgment and decree, the trial Court decreed the suit of the plaintiff for permanent injunction and restrained the defendants from interfering with the peaceful possession and enjoyment of the plaintiff’s suit schedule property.

The appeal accompanied I.A.No.1/2023 seeking to condone the delay of 1496 days in preferring the present appeal.

Heard learned counsel for the appellants and learned counsel for the respondent. - 3 - NC: 2025:KHC:34343 RFA No. 1350 of 2023 HC-KAR

In support of I.A.No.1/2023, an affidavit is sworn in by appellant No.1 on his behalf and on behalf of appellant No.2. The relevant portion of the affidavit is culled out and extracted hereunder: “08. I further state that during the end of the Trial, owing the WORLD WIDE COVID 19 pandemic situation and that I, the Appellant No.01 who is heading the family fell severe ill and almost become bed ridden temporarily lost his speech due to heavy hypertension and sugar, did not concentrate nor could able to participate the suit. Since the Appellant No.02 since was taking care of me, the Appellant No.01 herein, too could not able to participate in the proceedings and hence the Suit gone uncontested and decreed favour of Respondent herein.

09. I further state that after securing the certified copy of the impugned order recently and after consulting the present Advocate and upon his advice, without causing further delay, we are filing the present Appeal. I further state that the Respondent has brought false, malicious and frivolous Suit in O.S. No.1868/2017 and also the false Writ Petition. Owing to aforesaid bonafide circumstances, the Suit in O.S. No.1868/2017 went - 4 - NC: 2025:KHC:34343 RFA No. 1350 of 2023 HC-KAR uncontested and if the said Suit is not restored and fresh trial is not conducted, we will be put to untold hardship and they have to lose their meritorious case. Apart from the aforesaid reasons, the Suit of the Respondent is liable to be dismissed at the admission itself apparently, Respondent is not in possession of the Suit schedule property and apparently as is borne out from the records, the Appellants are in uninterrupted peaceful, physical, lawful, actual, constructive and in exclusive possession, occupation and in enjoyment of the suit schedule property.”

Learned counsel for the appellants contends that the trial Court erred in decreeing the suit for injunction. It is argued that the plaintiff-respondent was never in possession of the suit property and that they have been in lawful, continuous and exclusive possession for more than three decades. It is submitted that the plaintiff-respondent has fabricated documents to create a false claim and that the trial Court failed to notice the pendency of O.S.No.25905/2015 between the same parties concerning the very same property. It is contended - 5 - NC: 2025:KHC:34343 RFA No. 1350 of 2023 HC-KAR that the delay of 1496 days is on the ground that appellant No.1 suffered severe illness, was bedridden and temporarily lost his speech during Covid-19 pandemic. Appellant No.2 was occupied in attending to him, could not pursue the case. According to the learned counsel, these circumstances constitute “sufficient cause” for the delay and if the decree is not set aside, they would be deprived of a meritorious defence.

Per contra, learned counsel for the respondent supports the decree and submits that the plaintiff is the absolute owner and in lawful possession of the suit schedule property by virtue of the registered sale deed, corroborated by the katha certificate, tax receipts, sanction plan and other revenue records. It is argued that the defendants though they had filed a written statement denying possession, did not lead any evidence or produce documents and failed to cross-examine PW.1. The plea of long possession for three decades is mere an assertion and unsupported by proof. - 6 - NC: 2025:KHC:34343 RFA No. 1350 of 2023 HC-KAR

As regards delay, it is contended that the appellants were represented by counsel and participated in the proceedings, and the explanation now offered is an afterthought, unsubstantiated by medical records. The delay being inordinate and unexplained, the appeal deserves dismissal both on the ground of laches and on merits.

Having heard the learned counsel for the parties, the points that arise for consideration are: i. Whether the appellants have shown “sufficient cause” under Section 5 of the Limitation Act, 1963 to condone the inordinate delay of 1496 days? ii. Whether the judgment and decree of the trial Court suffers from illegality, perversity or error requiring interference? Point No.(i):

The law on condonation of delay is settled. The condition precedent is the existence of sufficient cause, - 7 - NC: 2025:KHC:34343 RFA No. 1350 of 2023 HC-KAR which may be shown with bonafides, diligence and supported by materials. The Apex Court in the case of Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar Academy and Others1 (Esha Bhattacharjee), emphasizes that while a liberal approach is permissible, it cannot be at the cost of defeating the law of limitation.

The Apex Court the case of Lanka Venkateswarlu Vs State of Andhra Pradesh and Others2 (Lanka Venkateswarlu), it was held that the Courts must not condone delay on vague and casual explanation. The Apex Court in the case of Baswaraj and Another Vs Special Land Acquisition Officer3 (Baswaraj), reiterated that the limitation cannot be extended on equitable consideration unless “sufficient cause” is shown. ORDER i. IA No.1/2023 for condonation of delay is rejected and Regular First Appeal stands - 10 - NC: 2025:KHC:34343 RFA No. 1350 of 2023 HC-KAR dismissed both on the ground of inordinate delay and on merits. ii. The judgment decree

23.02.2019 in O.S.No.1868/2017 on the file of XXVII Additional City Civil Judge, Bengaluru is affirmed. Sd/- ____________________ JUSTICE K.S. HEMALEKHA AT List No.: 1 Sl No.: 61