The High Court
Case Details
- 1 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1634 OF 2024 (SP) BETWEEN: 1. SRI NARAYANASWAMY S/O. MUNIVEERAPPA AGED ABOUT 45 YEARS 2. SRI. MUNIRAJU, S/O. MUNIVEERAPPA AGED ABOUT 43 YEARS 3. SRI. NARASIMHAPPA S/O. MUNIVEERAPPA AGED ABOUT 34 YEARS ALL ARE R/AT. MUTHUGADAHALLI VILLAGE KASABA HOBLI MALUR TALUK-563 130.
Legal Reasoning
(BY Ms. AMBIKA .D.G, ADVOCATE FOR SRI. B. MANJUNATH, ADVOCATE) AND: 1. SRI. V. MANJUNATHA S/O. VENKATAPPA AGED ABOUT 31 YEARS R/AT NO.60, 1ST MAIN ROAD Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA …APPELLANTS - 2 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 KAMALANAGARA BANGALORE-560 079. …RESPONDENT (BY SRI. K. VISHWANATHA, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.11.2024 PASSED IN RA NO.36/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MALUR., REJECTING THE IA NO.1 FILED UNDER SEC.5 OF THE LIMITATION ACT., AND FILED AGAINST THE JUDGMENT AND DECREE DATED 3.06.2023 PASSED IN OS NO.238/2016 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, AT MALUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants, challenging the order on I.A.1 dated 11.11.2024 passed by the learned Senior Civil Judge and JMFC, Malur, in R.A.No.36/23, and consequently, dismissed the appeal. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the defendants, and the respondent was the plaintiff. - 3 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 3. Brief facts, leading rise to the filing of this appeal, are as follows: The defendants, aggrieved by the judgment and decree dated 03.06.2023 passed in O.S.No.238/16, filed an appeal in R.A.No.36/2023 along with an application for condonation of delay of 2 months 14 days in filing the appeal. In support of the application, an affidavit of defendant No.1 was filed, contending that, the defendants, aggrieved by the judgment and decree passed in O.S.No.238/2016, filed an appeal. It is contended that, due to illiteracy and ignorance, they could not file an appeal within the period of limitation as there was a delay in collecting the Court fees of Rs.30,750/-, the brother and the mother of the appellants/defendants were suffering from health issues. Thus, there was a delay of 2 months and 14 days in filing the First appeal. It is stated that the delay in filing an appeal is not an intentional one, but it is a bonafide one. Accordingly, prays to allow the application. - 4 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 3.1. The plaintiff opposed the said application by filing his objections, contending that, the suit was decreed on 3.6.2023 and the defendants have not shown the sufficient cause to condone the delay in filing the appeal, and accordingly, pray to reject the application. 3.2. The First Appellate Court held an enquiry on the said application. Defendant No.1 was examined as PW.1, and no documents were produced. On the other hand, the plaintiff did not enter the witness box, and no documents were produced. The Appellate Court has rejected the application vide order dated 11.11.2024. The appellants/defendants, aggrieved by the order on I.A.1 passed in R.A.No.36/23, filed this Regular Second Appeal. 4. Heard the arguments of the learned counsel for the parties. 5. Learned counsel for the defendants submits that the defendants are illiterate and poor; the defendants could not collect the Court fee within time. She submits that the - 5 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 defendants’ family members were suffering from ill health. Hence, the defendants could not file an appeal within time. Thus, there is a delay of 2 months and 14 days in filing the Regular First Appeal. The defendants have shown sufficient cause to condone the delay. However, the First Appellate Court has rejected the said application on a technical ground. To buttress her argument, she relies on the judgment of the Hon’ble Apex Court in the case of Collector Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported in (1987) 2 SCC 107. Hence, on these grounds, she prays to allow the appeal. 6. Per contra, the learned counsel for the plaintiff submits that there is a delay in filing the first appeal, the cause shown by the defendants is not a sufficient cause, and the Appellate Court was justified in rejecting I.A.1. Hence, on these grounds he prays to dismiss the appeal. 7. Perused the records and considered the submissions of the learned counsel for the parties. - 6 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 8. This Court admitted the appeal, to consider the following substantial question of law : “Whether the first Appellate Court has committed an error in rejecting I.A.1 for condonation of delay, wherein the appellants have shown sufficient cause for condoning the delay in not preferring the appeal within time?” 9. Admittedly, the plaintiff has filed a suit for specific performance. The defendants filed a written statement, and the parties have led their evidence. The trial Court, on the assessment of oral and documentary evidence, decreed the suit of the plaintiff with cost vide judgment dated 3.6.2023, and directed the defendants to execute the sale deed in respect of the suit schedule property in favour of the plaintiff after receiving the balance sale consideration amount within three months from the date of the order, failing which, the plaintiff, is entitled to get the decree executed through the Court as per law. The defendants, aggrieved by the judgment and decree dated - 7 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 3.6.2023 passed in O.S.No.238/16, preferred an appeal in R.A.No.36/23, and filed an application under Section 5 of the Limitation Act, praying to condone the delay of 2 months and 14 days in filing the First Appeal, wherein, the defendants have stated that due to illiteracy and ignorance, they could not file an appeal within the period of limitation. Further, there was a delay in collecting Court fee of Rs.30,750/-, the brother and the mother of the defendants were suffering from health issues, and they have been treated by the concerned physician. Thus, a delay has been caused in filing the appeal. The defendants have shown sufficient cause, that the family members were suffering from ill health. The issue was not properly considered by the First Appellate Court, and rejected I.A.1. The Hon’ble Apex Court in the case of Collector Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported in (1987) 2 SCC 107 has held that, while considering the application for condonation of delay, the Court should be liberal. The Appellate Court, without considering the ratio laid down by the Hon’ble - 8 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 Apex Court in the aforesaid case, has rejected I.A.1 filed by the defendants. The defendants have shown a sufficient cause for not preferring the appeal within the period of limitation before the first Appellate Court. 10. In view of the above discussion, I answer substantial question of law in the affirmative, and accordingly, proceed to pass the following order :
Decision
ORDER i) The appeal is allowed; ii) The order passed on I.A.1 dated 11.11.2024 in R.A.No.36/2023, by the learned Senior Civil Judge and JMFC, Malur, is set aside; iii) Consequently, I.A.1 is allowed; a delay of 2 months, 14 days is condoned; The appeal is restored. iv) The First Appellate Court is directed to dispose of the appeal on merits. - 9 - NC: 2025:KHC:11816 RSA No. 1634 of 2024 v) The Parties are directed to appear before the First Appellate Court on 03.06.2025 without waiting for any further notice. All the contentions of the parties are kept open. SD/- (ASHOK S.KINAGI) JUDGE rs List No.: 1 Sl No.: 32