BASAPPA v. SMT. YAMANAVVA

Judgment

2. KASHAWWA @ RADHA W/O. GOPAL BADIGER, AGE: 35 YEARS, OCC. HOUSEHOLD WORK, R/O. KAKATI, DIST. BELAGAVI-590002. PREMAVVA W/O. KALAPPA PATTER @ BADIGER, AGE: 45 YEARS, OCC. HOUSEHOLD, R/O. BIJAGUPPI, TQ. RAMDURG, DIST. BELAGAVI-590002.

3. MOUNESH S/O. KALAPPA PATTER @ BADIGER, AGE: 28 YEARS, OCC. AGRICULTURE, R/O. BIJAGUPPI, TQ. RAMDURG, DIST. BELAGAVI-590002. VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL 10:19:02 +0530 - 2 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022

4. MARUTI S/O. KALAPPA PATTER @ BADIGER, AGE: 26 YEARS, OCC. STUDENT, R/O. BIJAGUPPI, TQ. RAMDURG, DIST. BELAGAVI-590002.

5. MANJUNATH S/O. KALAPPA PATTER @ BADIGER, AGE: 22 YEARS, OCC. CARPENTER AND AGRICULTURE, R/O. BIJAGUPPI, TQ. RAMDURG, DIST. BELAGAVI-590002.

6. BALESH S/O. KALAPPA PATTER @ BADIGER, AGE: 20 YEARS, OCC. STUDENT, R/O. BIJAGUPPI, TQ. RAMDURG, DIST. BELAGAVI-590002.

7. NARAYANAPPA S/O. MAHADEVAPPA BADIGER, AGE: 50 YEARS, OCC. AGRICULTURE, R/O. KERUR, TQ. BADAMI, DIST. BAGALKOT-587101.

8. LAXMAVVA W/O. DEVENDRAPPA BADIGER, AGED ABOUT 45 YEARS, OCC. HOUSEHOLD WORK, R/O. DEVINAL, TALUK: BAGALKOT-587101.

9. ANUSUYA W/O. SHIVAPPA BADIGER, AGED ABOUT 62 YEARS, OCC. HOUSEHOLD WORK, R/O. KERUR, TALUK: BADAMI, DIST. BAGALKOT-587101.

10. SHANTAVVA W/O. YAMANAPPA KAMMAR, AGED ABOUT 60 YEARS, OCC. HOUSEHOLD WORK, R/O. ITAGI, TALUK: BASAVANA BAGEWADI-587101. … RESPONDENTS

THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 18.09.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT BADAMI IN R.A.NO.17/2015 AND CONSEQUENTLY DISMISS THE SUIT BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.02.2009 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN) AND - 3 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 JUDICIAL MAGISTRATE O.S.NO.48/2006, IN THE INTEREST OF JUSTICE AND EQUITY. CLASS FIRST BADAMI AT IN THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA ORAL JUDGMENT The present appeal is accompanied with I.A. No.2/2022 to condone the delay of 576 days in preferring the appeal. The grounds urged the affidavit accompanying I.A. No.2/2022 is at para No.5 which is culled out as under: “5. I state that after the judgment was passed by the 1st Appellate Court due to ongoing pandemic I could not keep in contact with my advocate and was under the impression that appeal may take some time for disposal. And after coming to know about the disposal of the case I have immediately contact my advocate and took all the necessary documents and preferred this appeal. As I could not keep the track of my case due to personal and on-going pandemic there is some delay in filing this appeal which is neither intentional nor deliberate.”

2. The reasons stated to condone the delay of 576 days in preferring the appeal is that the judgment was passed by the First Appellate Court during the Covid-19 - 4 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 Pandemic and he could not contact his counsel and he was under the impression that the appeal may take some time for disposal and after coming to know about the disposal of the case, immediately he contacted his counsel, made necessary arrangements and delay is caused due to the said reasons.

3. Suit is one for partition and separate possession, the present appellant was arrayed as defendant No.6 before the trial Court. Admittedly, defendant No.6 was placed exparte. The trial Court based on the oral and documentary evidence held that the plaintiff is entitled for 1/4th share in the suit property and also entitled for possession. Defendant No.6 preferred appeal before the First Appellate Court with a delay of six years three months fourteen days. Along with the regular appeal, application in I.A.1 was filed seeking to condone the said delay of six years three months fourteen days in filing the regular appeal. Reasons indicated was that he was placed exparte and he had no knowledge about - 5 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 passing of the judgment and decree and only he came to know recently and hence, filed an appeal. Respondent Nos.3 to 5 filed objections to the said application inter alia contending that the appellant had knowledge about the judgment and decree passed in O.S. No.48/2006, as in the final decree proceedings initiated in FDP. No.6/2011, the defendant No.6 was arrayed as respondent No.6 and he appeared along with respondent Nos.1, 4 and 5, hence, sought for dismissal of the application filed to condone the delay of six years three months fourteen days. The First Appellate Court while considering the reasons assigned in the affidavit accompanying I.A.1 arrived at a conclusion that in FDP.No.6/2011 the present appellant was arrayed as respondent No.6 and he was served with a notice personally, on perusal of the order sheet the First Appellate Court held that the present appellant had filed objections to I.A. No.1 before the final decree Court. The appellant personally served in the FDP. No.6/2011 on

06.08.2011 and the R.A. No.17/2015 was preferred only on 02.05.2015 and observing that the appellant had - 6 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 knowledge about the preliminary decree in the year 2011 itself and no satisfactory explanation is offered by the appellant to show sufficient cause to condone the delay in filing the appeal has dismissed I.A. No.1 filed under Section 5 of the Limitation Act and consequently dismissed the regular appeal as well. Against which, the present appeal is filed by defendant No.6 with a delay of 576 days in preferring the appeal.

4. The question that falls for consideration before this Court is that “whether in the facts and circumstances of the reasons indicated above, the appellant has made out sufficient ground to condone the inordinate delay before this court as well as the appellate court ?”

5. The law of limitation finds its routes in the legal maxim “Interest reipublicae ut sit fanis litum” which means that in the interest of the state as whole there should be a limit to litigation and “vigilantibus non dormeientibus jura subveniunt” which means the law will assist only those who are vigilant to their rights and not - 7 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 those who sleep upon it. The law of limitation specifies the statutory time frame within which a person may initiate a legal proceedings or a legal action can be brought. If the suit is filed after the expiry of the time prescribed, it will be barred by limitation, it means that the suit brought before the Court after the expiry of the time within which a legal proceedings to be initiated will be restricted.

6. Section 3 of the Limitation Act, 1963 lays down the general rule that if any suit, appeal and application made after the prescribed period shall be dismissed although limitation has not been setup as a defence, the exceptions are culled out under Section 4 to 24 of the Limitation Act, and this Court is concerned about Section 5 of the Limitation Act, which empowers the Court to admit an appeal even if it is preferred after the prescribed period provided the proposed appellants give “sufficient cause” for not preferring the appeal within the prescribed period, in other words the Courts have conferred with - 8 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellants are able to establish “sufficient cause” for not filing within time.

7. The said power to condone the delay and admit the appeal preferred after the expiry of the time is discretionary in nature and may not be exercised even if “sufficient cause” is shown based upon post of other factors such as negligence, failure to exercise due diligence, etc., the Apex Court in the case of Collector, Land Acquisition, Anantnag and Other Vs. Katiji and Others1 has held in advocating the liberal approach in condoning the delay for sufficient cause held that ordinarily a litigant does not stand to benefit by lodging an appeal late: it is not necessary to explain every days delay in filing the appeal: and since some time refusal to condone the delay may result in throwing out the meritorious matter, it is necessary in the interest of justice 1 (1987) 2 SCC 107 - 9 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 that cause of substantial justice should be allowed to prevail upon the technical consideration and if the delay is not deliberate, it not be condoned. Notwithstanding the above, however liberal approach is adopted in condoning the delay, existence of “sufficient cause” for not filing the appeal in time is a condition precedent for exercising the discretionary power to condone the delay.

8. The phrases “liberal approach, justice oriented approach” and cause for the advancement of “substantial justice” cannot be employed to defeat the law of limitation so as to allow the stale matters or as a matter of fact dead matters to be revived and reopened by taking aid of Section 5 of the Limitation Act. In the instant case, the delay is 576 days in this appeal, and six years and above before the First Appellate court. Section 5 of the Limitation Act, prescribes a certain period for filing an appeal, substantial right has already been created in favour of the decree holder herein and this right ought not to be lightly disturbed, the decree holder has already created a decree - 10 - NC: 2024:KHC-D:17004 RSA No. 100069 of 2022 in her favour by lapse of time. The Apex Court in the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields ltd.,2 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the Court. The Court, despite establishment of “sufficient cause” for various reasons may refuse to condone the delay depending upon the bonafide of the party.

9. The Apex Court the case of Lanka Venkateswarlu (Dead) By LRs Vs. State of Andhra Pradesh and Others3 has observed that despite an unsatisfactory explanation for the delay of 3703 days, the High Court had allowed application for condonation of delay, the Apex Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. The High Court should have exercised the