Bokka Venkteshwara Rao vs Smt. Lingamma W/O Late Galli ...
2021 Latest Caselaw 5450 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 4TH DAY OF DECEMBER, 2021

                         BEFORE

          THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     REGULAR SECOND APPEAL NO.100848 OF 2018 (SP)


BETWEEN:

BOKKA VENKTESHWARA RAO,
S/O NAGANNA,
AGE:51 YEARS, OCC:AGRICULTURE,
R/O RAGHVENDRA COLONY,
SRIRAMANAGAR VILLAGE,
TQ:GANGAVATHI, DIST:KOPPAL - 583 227.
                                           ...APPELLANT

(BY SMT.PALLAVI S.PACHCHAPURE, ADVOCATE FOR
    SRI.F.V.PATIL AND SRI NANDISH PATIL, ADVOCATES)

AND:

SMT.LINGAMMA
W/O LATE GALLI VEERESHAPPA,
AGE:41 YEARS, OCC:AGRICULTURE,
R/O MUSTUR VILLAGE,
TQ:GANGAVATHI, DIST:KOPPAL,
SINCE DECEASED THROUGH HER LRS.

1.     SMT.M.BASAMMA
       W/O MALLIKARJUNA,
       AGE: 77 YEARS, OCC:HOUSEHOLD,
       R/O ELINGANUR VILLAGE,
       TQ:GANGAVATHI, DIST:KOPPAL - 583 229.

2.     KUMARI ASHWINI @ GOURI
       D/O LATE VEERESHAPPA,
                               2




      AGE:21 YEARS, OCC:HOUSE HOLD,
      R/O ELINGANUR VILLAGE,
      TQ:GANGAVATHI, DIST:KOPPAL - 583 229.
                                        ...RESPONDENTS

      (NOTICE TO R1 HELD SUFFICIENT;
       R2 - SERVED)


      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908.


      THIS RSA POSTED FOR FINAL HEARING THIS DAY; THE
COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

Smt.Pallavi S.Pachhapure learned counsel on behalf of

Sri.F.V.Patil and Sri.Nandish Patil for appellant has appeared

in person.

2. This is an appeal from the Court of Senior Civil

Jude and JMFC, Gangavathi.

3. For the sake of convenience, the parties are

referred to as per their rankings before the Trial Court.

4. The facts of the case are simply stated as

under:

It is stated that one Gali Veereshappa, the husband of

the defendant was the absolute owner and possessor of

land bearing Sy.No.112/A/4 measuring 20 Guntas situated

at Mushtur Village, Gangavathi Taluk. He had agreed to sell

the said property to the plaintiff for a consideration of

Rs.50,000/- (Rupees Fifty Thousand only) for his family

necessity. He received earnest money of Rs.40,000/-

(Rupees Forty Thousand only) and executed agreement for

sale on 23.08.2004 in the presence of witnesses and agreed

to execute registered sale deed as and when called by the

plaintiff after securing necessary documents in respect of

the property.

However, Gali Veereshappa did not execute the sale

deed and went on postponing the same on one or the other

pretext. He died leaving behind his legal heirs. The plaintiff

approached his legal representatives - the defendants and

called upon them to execute the sale deed but in vain.

Hence, plaintiff issued notice and the same was duly served

on 18.03.2010. Despite the service of notice, the

defendants did not execute the sale deed.

It is averred that plaintiff is always ready to perform

his part of the contract and to get execute the sale deed by

tendering balance consideration amount. There is no breach

of contract by the plaintiff it is only the defendants who

have breached the contract.

Originally the suit was filed against the wife of Gali

Veereshappa who was defendant No.1. Thereafter, on the

basis of order on I.A.No.2, defendants 1(a) and (b), the

mother-in-law and the daughter of Gali Veereshappa were

impleaded. The Court summons was not served. On the

basis of order on I.A.No.1, substitute service by way of

paper publication was ordered which was duly published.

But defendants 1(a) and (b) failed to appear before the

Court. Accordingly, they were placed ex parte.

On the basis of the order on I.A.No.6, the Court

advocate guardian was appointed for defendant No.1(b)

who was minor. The guardian filed written statement on

behalf of minor defendant No.1(b). The plaint averments

were denied. It was specifically denied the transaction

between plaintiff and Gali Veereshappa. It was also

contended that the suit is barred by time. Accordingly, they

prayed for dismissal of the suit.

5. On the basis of the pleadings, the Trial Court

framed the following issues:

1. Does the plaintiff proves that the deceased Gali Veereshappa has executed the agreement of sale dated 23/08/2004 by receiving earnest money of Rs.40,000/-?

2. Does the plaintiff proves that he is ever ready and wiling to perform his part of contract?

3. Does the suit of the plaintiff is barred by limitation?

4. Does the plaintiff entitles the decree for Specific Performance of Contract?

5. What decree or order?

To prove his case, plaintiff examined himself as PW1

and two other witnesses as PW2 and PW3. They produced

five documents which were marked at Exs.P.1 to P5. On

behalf of defendants, they have not adduced any evidence

nor they produced any documents.

6. On the trial of the action, the Trail Court

declined to grant the relief of specific performance of

contract. However, the suit came to be decreed holding that

plaintiff is entitled for refund of earnest money of

Rs.40,000/- (Rupees Forty Thousand only) from defendant

No.1(b) together with interest at the rate of 6% from the

date of execution of sale agreement at Ex.P-1 till the date of

realization.

Aggrieved by the judgment and decree, the plaintiff

preferred the appeal before the Appellate Court. There was

a delay in presenting the appeal. Hence, an application

under Sec.5 of Limitation Act was filed accompanying the

Memorandum of Appeal. The Appellate Court dismissed the

application and further proceeded to discuss the matter on

merits and consequently, dismissed the appeal also. Hence,

this Appeal is filed under Sec.100 of C.P.C.

7. Smt.Pallavi S.Pachhapure learned counsel for

appellant submits that the judgment and decree of both the

Courts below are contrary to the evidence on record and

unsustainable in law.

Next, she submitted that there was a delay of 54 days

in filing the regular appeal. The plaintiff has shown sufficient

cause for condonation of delay. However, the First Appellate

Court has erroneously proceeded to reject the application in

the absence of any objection from the other side.

A further submission was made that the First

Appellate Court has erred in recording the findings on

merits of the case, when the delay was not condoned.

Counsel vehemently urged that the consideration of

maintainability or merits will arise only after the delay is

condoned and the appeal is taken on record.

To support the contention, counsel relied upon the

decision reported in "MARIGOUDA CHANABASAPPA

MARIGOUDAR VS. SATTEPA VEERAPPA KOUJALAGI

AND OTHERS" reported in 2015 (1) KCCR 468.

Lastly, she submits that the judgment and decree of

the First Appellate Court lacks judicial reasoning.

Accordingly, she submits that the appeal may be allowed.

8. Heard, the contention urged on behalf of the

appellant and perused the records with care.

The facts have been sufficiently stated. The case

really falls within a small compass.

The plaintiff initiated action against the defendant

seeking the relief of specific performance. The Trial Court

refused to grant the relief of specific performance however,

ordered for refund of earnest money. The plaintiff preferred

regular appeal before the First Appellate Court. There was a

delay of 53 days in presenting the appeal. Hence, an

application for condonation of delay was filed under Section

5 of the Limitation Act was filed. The appellant filed an

affidavit explaining the reasons for the delay.

I have perused the affidavit with care. It is stated the

appeal ought to have been filed on or before 09.05.2016

but due to civil holidays he could not file the appeal. From

29.05.2016 to 20.06.2016 he was unwell and was under

treatment. Hence, there is delay of 53 days in filing the

appeal. It is also stated that he has every chance of

succeeding in the appeal and if the delay is not condoned

then he will be put to greater hardship. Accordingly, it was

prayed to condone the delay and to take the appeal on

board.

It is significant to note that the First Appellate Court

framed points for consideration. The first point relates to

condonation of delay and the other two points relates to the

merits of the case.

It is interesting to note that the First Appellate Court

has elaborately dealt with the matter on the merits of the

case. Learned Judge has not considered the application

independently. Ultimately appeal came to be dismissed by

holding that I.A.No.I filed under Section 5 of the Limitation

Act is liable to be dismissed. At the same time, learned

Judge has given findings with regard to the merits of the

case also.

I may extract the operative portion of the order

passed in R.A.No.29/2016 which reads as follows:

ORDER

The Regular Appeal is dismissed with costs.

The Judgment and Decree passed by the

Prl. Civil Judge and JMFC, Gangavathi in

O.S.No.208/2010 dated:31-3-2016 is hereby

set aside.

The suit of the Plaintiff in O.S.No.208/2010

is hereby dismissed with cost.

I.A.No.I filed by the Appellant is hereby

dismissed.

Return the LCR along with the copy of this

judgment to the trial court forthwith.

Draw up the decree accordingly.

The final order dated:24.08.2018 passed by the Court

of Senior Civil Judge, Gagavathi is called in question on

various grounds as set out in the appeal memo.

After perusing the order of the First Appellate Court, it

is evident that though the application I.A.No.I for

condonation of delay has been dismissed, learned Judge has

considered the appeal and has dealt with the merits of the

case and dismissed the appeal confirming the judgment and

decree of the Trial Court. In my considered view, the

approach of learned Judge in dealing with the merits of the

case is not justified.

It is perhaps well to observe that whenever an

application is filed under Sec.5 of the Limitation Act for

condonation of delay in filing of the appeal, the Court has to

show whether the cause shown for condonation of delay is

acceptable or not. Considering the question of

maintainability or merits will arise only after the delay is

condoned and the appeal is taken on file. The Court will not

get jurisdiction to give its findings on the maintainability of

an appeal or about the merits, unless the appeal is taken on

file by condoning the delay.

In the instant case, the Appellate Court has not only

dismissed the application filed under Section 5 of the

Limitation Act on the ground that the appellant has not

made out any good grounds to condone the delay, but also

has proceeded to record findings on the merits of the case .

While addressing arguments, learned counsel

Smt.Pallavi strenuously urged that the First Appellate Court

is not justified in rejecting the application for condonation of

delay. There is a delay of 53 days. The First Appellate Court

has not exercised the discretionary powers properly.

Counsel therefore, submitted that the delay may be

condoned.

I have heard the contention urged on behalf of

appellant with utmost care. In the present case, the Trial

Court passed the judgment and decree on 31.03.2016. The

appeal came to be filed on 24.06.2016. In the affidavit, it is

stated that the appeal ought to have been filed on or before

09.05.2016 but due to civil holidays he could not file the

appeal. From 29.05.2016 to 20.06.2016 he was unwell and

was under treatment. Hence, there is a delay of 53 days in

filing the appeal.

It is also stated that he has every chance of

succeeding the appeal and if the delay is not condoned then

he will be put to greater hardship. However, the First

Appellate Court refused to condone the delay stating that no

grounds are made out to allow the application.

I find myself unable to accept the said reason.

It is significant to note that the Hon'ble Apex Court in

number of cases has held that the primary function of a

Court is to adjudicate the dispute between the parties and

to advance substantial justice. Rules of limitation are not

meant to destroy the rights of parties. They are meant to

see that parties do not resort to dilatory tactics, but seek

their remedy promptly.

A Court knows that refusal to condone the delay

would result in foreclosing a suitor from putting forth his

cause. There is no presumption that delay in approaching

the Court is always deliberate. The word 'sufficient Cause'

under Section 5 of the Limitation Act should receive a liberal

construction so as to advance substantial justice.

The Apex Court has also held that in every case of

delay, there can be some lapse on the part of the litigant

concerned. That alone is not enough to turn down his plea

and to shut the door against him. If the explanation does

not smack of mala fides or it is not put forth as part of a

dilatory strategy, the Court must show utmost consideration

to the suitor.

As already noted above, there is delay of 53 days in

filing the appeal. In my considered view, the explanation

offered in the affidavit to condone the delay is sufficient to

exercise the discretionary powers of the Court to condone

the delay. The First Appellate Court has not exercised the

discretionary powers properly. Taking note of the reasons

accorded in the affidavit I am of the view that the delay

may be condoned.

Therefore, exercising the discretionary powers, delay

of 53 days in filing the appeal is condoned and appeal is

restored to the Registry and the matter is remitted to the

Appellate Court. Accordingly, the findings recorded by the

Appellate Court is set-aside.

Accordingly, substantial questions of law are

answered.

The Appellate Court is hereby directed to decide the

appeal on the merits of the case and dispose off in

accordance with law.

Accordingly, the appeal is allowed. The judgment

and decree dated:24.08.2018 passed by the Court of Senior

Civil Judge, Gangavathi in R.A.No.29/2016 is set-aside.

Parties to bear their own costs.

Sd/-

JUDGE

TKN