Karnataka High Court
Sri Anjinappa vs Smt Padmavathi on 3 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:24953
RSA No. 344 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 344 OF 2018 (PAR)
BETWEEN:
1. SRI ANJINAPPA
S/O LATE KUTUMAIAH,
AGED ABOUT 67 YEARS,
R/AT HOSUR BANDE VILLAGE,
BIDARAHALLI HOBLI,
BENGALURU EAST TALUK-562114.
...APPELLANT
(BY SRI. SIDDHARTH B. MUCHANDI, ADVOCATE)
AND:
SMT. PADMAVATHI
SINCE DEAD BY HER LRS
Digitally signed 1. SRI CHANDRASHEKAR
by DEVIKA M S/O LATE PADMAVATHI,
Location: HIGH AGED ABOUT 37 YEARS
COURT OF
KARNATAKA
2. SMT SUMADEVI
D/O LATE PADMAVATHI,
AGED ABOUT 32 YEARS,
3. SRI LAKSHMIPATHI
S/O LATE PADMAVATHI,
AGED ABOUT 34 YEARS,
4. SRI KRISHNAKUMAR
S/O LATE PADMAVATHI,
AGED ABOUT 35 YEARS,
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NC: 2024:KHC:24953
RSA No. 344 of 2018
THE RESPONDENTS NO.1 TO 4 ARE
RESIDING AT NO.10/3,
ACHUT ROY MUDLIYAR ROAD,
FRAZER TOWN,
BENGALURU-560 005.
5. SMT. LAKSHMI DEVI
D/O LATE MILLAPPA,
W/O M. NARAYANAPPA,
R/AT VENKATESHPURA,
NAGAWARA ROAD,
BENGALURU-560 005.
...RESPONDENTS
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
ORDER DATED 08.11.2017 PASSED ON I.A.NO.I IN
R.A.NO.33/2015 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
DISMISSING I.A.NO.I FOR CONDONATION OF DELAY AND
CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST THE
JUDGEMENT AND DECREE DATED 15.12.2012 PASSED IN
O.S.NO.1030/1996 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the learned counsel for the appellant.
2. The First Appellate Court dismissed the appeal on the ground that the delay has not been properly explained, in coming to the conclusion that no sufficient cause has been shown and I.A. filed under Section 5 of the Limitation Act was -3- NC: 2024:KHC:24953 RSA No. 344 of 2018 dismissed with cost of Rs.500/-. Hence, this second appeal is filed.
3. No doubt, the matter has not been considered by the First Appellate Court on merits, having perused the records of the Trial Court, the judgment was passed in 2012 and appeal was filed in 2015 and reasons given in the condonation of delay application is blaming the advocate and the First Appellate Court also, having considered the material on record, particularly cross-examining the son of the appellant as P.W.1, taken note of the fact that he had the knowledge of judgment and decree of the Trial Court passed in 2012 and though he contends that he gave the instructions and paid fee to the advocate, but he did not pursue the matter. Even records disclose that certified copy was taken on 15.02.2013 and appeal was filed on 10.03.2015. The First Appellate Court has also made an observation that without making enquiry whether the appeal has been really filed before the Court or not, he had kept quiet and also in the cross-examination, it is elicited that complaint is given against the counsel for not filing the appeal and all these facts are taken note of by the First Appellate Court.
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NC: 2024:KHC:24953 RSA No. 344 of 2018
4. The First Appellate Court also observed that even though P.W.1 stated that he had lodged the complaint before Bar Council, no such document is produced before the Court and hence, not accepted the bald allegations made against the counsel for the appellant and observed that the same is not sufficient substantiate the grounds urged by the appellant to condone the delay. The First Appellate Court further observed that it is the bounden duty of the appellant that when he came to know about the judgment and decree passed in the suit, ought to have approached his advocate to file the appeal within time and also taken note of the fact that delay period has not been properly explained by the appellant and held that party cannot blame his advocate and on that ground, he cannot seek for condonation of delay and it is also an equal duty of a party to consult his advocate, appraise him about the facts and give proper instructions to file appeal and the same has not been done.
5. When such being the material on record and when the suit was decreed in 2012 itself, no appeal was filed for a period of three years and no proper explanation is given for the -5- NC: 2024:KHC:24953 RSA No. 344 of 2018 delay. While condoning the delay, the appellant has to show sufficient cause to condone the delay and no sufficient cause is shown to condone the same, except blaming his advocate. Hence, I do not find any ground to reverse the finding of the First Appellate Court in dismissing the application filed by the appellant and the First Appellate Court considered the material on record and even allowed the appellant to lead evidence and even after leading evidence, no sufficient cause is shown and unless and until each day's delay is satisfactorily explained, the question of condoning the delay does not arise.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE ST List No.: 1 Sl No.: 66