Aanjanaya S/O. Timmappa Hubballi vs Somappa S/O. Gangadarappa Rotti
2021 Latest Caselaw 5721 Kant

                           1




 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 8TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

  CIVIL REVISION PETITION NO.100036 OF 2021

BETWEEN:

AANJANAYA
S/O TIMMAPPA HUBBALLI,
AGE ABOUT 53 YEARS, OCC:PRIVATE JOB,
R/O GALAPPANAVAR ONI, GADAG              ...PETITIONER

(BY SRI ARAVIND D. KULKARNI, ADVOCATE)

AND:

SOMAPPA
S/O GANGADARAPPA ROTTI,
AGE ABOUT 46 YEARS,
OCC:BUSINESS,
R/O PANCHAXARI NAGAR, II CROSS,
GADAG.                                   ...RESPONDENT

(BY SRI M.M.PATIL, ADVOCATE)


       THIS CRP IS FILED UNDER SECTION 115 OF THE

CIVIL PROCEDURE CODE, 1908.


       THIS CRP POSTED FOR ADMISSION, THIS DAY, THE

COURT MADE THE FOLLOWING:
                               2




                           ORDER

Sri. Aravind D.Kulkarni learned counsel for petitioner

and Sri.M.M.Patil learned counsel for respondent have

appeared in person.

2. This revision petition is listed for Admission.

With the consent of learned counsel appearing for the

parties, the appeal is heard finally.

3. The parties are referred to as per their ranking

before the Trial Court.

4. The facts are simply stated as under:

It is stated that the defendant is the owner of the

property bearing No.N.A.Plot No.01 out of R.S.NO. 414

totally measuring 00.Acres 06 Guntas 07-1/2 Ane situated

at Betageri Village. The suit property is western side

measuring 2000 square feet having the middle portion

bounded to the East: Plot belong to the defendant, to the

West: Hall, to the North: Road and to the South: Hall.

The plaintiff being a resident of Gadag was intending

to purchase the property and it was learnt that the

defendant was intending to sell the property. Hence,

plaintiff proposed to purchase the suit property for

Rs.162.50 per square feet to the defendant. The

defendant considering the proposal of the plaintiff as

reasonable and adequate, accepted it and agreed to sell

the suit property in favor of plaintiff. Accordingly, the

defendant executed an agreement of sale on 07.05.2010

by receiving earnest money of Rs.1,51,000.00 (Rupees

One Lakh Fifty-One Thousand only) from the plaintiff in

the presence of witness. Under the said agreement of sale,

the defendant agreed and promised that he would come

and execute the regular sale deed by receiving balance

sale consideration amount of Rs.1,74,000.00 (Rupees

One Lakh Seventy-four Thousand only) as and when the

plaintiff demands without fail with delivering the actual

possession of suit property in favor of plaintiff.

It is averred that plaintiff subsequently made several

requests to defendant to receive balance sale

consideration of Rs.1,74,000.00 (Rupees One Lakh

Seventy-four thousand only) and execute the registered

sale deed in his favor by delivering the actual possession

of the suit property. But the defendant went on

postponing the same on one or the other pretext.

When things stood thus, plaintiff doubting the bona

fide of the defendant activities, issued a legal notice on

28.05.2012 through his advocate calling upon the

defendant to execute a regular sale deed by receiving

rupees balance sale consideration amount showing his

readiness and willingness to perform his part of job. The

defendant has received the said notice on 29.05.2012 but

did not comply with the instructions given under the

notice. He did not reply to the notice also.

Hence, plaintiff was constrained to take shelter

under the Court and accordingly, initiated action and filed

suit for specific performance.

In response to the summons issued by the trial

Court, the defendant did not appear. He was placed ex-

parte.

Based on the pleadings, the Trial Court framed the

following points for consideration:-

1. Whether plaintiff proved that the defendant

has executed an agreement of sale dated

7/5/2010 by receiving a sum of

Rs.1,51,000/- in the presence of the

witnesses?

2. Whether plaintiff is entitled for specific

performance of counteract?

3. What order or decree?

To prove his case, plaintiff got examined himself as

PW1 and four witnesses were examined as PWs-2 to 5 and

produced four documents which were marked as Exs.P-1

P1(a) and (b) to P-4. The defendant has neither led any

evidence nor produced any documents.

On the trial of the action, the suit came to be

decreed on 17.07.2014 and directed the defendant to

execute sale deed in respect of the suit property in terms

of sale agreement dated 07.05.2010 within 2 months from

the date of decree.

The defendant filed a petition as Civil Miscellaneous

No.09/2015 before the same Court, requesting Court to

set aside the ex- parte decree; the Court after considering

the entire material on record vide its order dated

13.03.2019 dismissed the petition. The said order was

challenged before this Court in MFA NO.101804/2019. The

defendant filed a memo for withdrawal of the appeal and

the memo was taken on record and appeal was dismissed

as withdrawn on 11.06.2019.

After the withdrawal of the appeal, the defendant

filed an Appeal before the First Appellate Court and

challenged the judgment and decree dated 17.07.2014

passed by the Court of Principal Civil Judge, Gadag in

O.S.No.224/2012. There was a delay in filing the appeal.

Hence, an application under Section 5 of the Limitation Act

was filed to condone the delay of 1778 days in filing the

appeal. The First Appellate Court after issuing notice to the

parties, received objections of the plaintiff. The application

of delay was heard on merits. On this application,

evidence of defendant was recorded. The First Appellate

Court after hearing both sides passed the order thereby

condoned the delay of 1778 days by imposing cost of

Rs.10,000/- (Rupees Ten Thousand Only). Hence this

revision petition is filed under Section 115 of CPC, on

various grounds as set out in the memorandum of revision

petition.

5. Sri.Aravind D.Kulkarni, learned counsel for

petitioner submits that the order is against the well-

established principles of law and cannot be sustained in

the eye of law.

Next, he submitted that the defendant was the

appellant before the First Appellate Court. The statements

made in the application are not true and he has misled the

Court.

It is submitted that the defendant has stated that

the appeal in MFA No.101804 /2019 was withdrawn with a

leave to approach the Appellate Court. Counsel submitted

that there is no such permission or leave granted by High

Court.

A further submission was made that the defendant

being the appellant before the First Appellate Court has

given evidence. In the evidence at paragraph 7, he has

stated that as per the direction of the High Court he

withdrew the appeal 'on leave' to approach the First

Appellate Court. He has deposed against the records and

the Court on wrong assumption has passed the order.

Counsel vehemently urged that the defendant is a

practicing Advocate and he should be vigilant in

prosecuting his own claim. It is also submitted that delay

of 1778 days is huge and the reasons for the delay are not

explained properly. Hence, he is not entitled for any

discretionary relief.

It is further submitted that the defendant claims that

in the original proceedings, notice was served on him and

he engaged service of Advocate but learned counsel did

not file vakalath due to ill health. Therefore, while

explaining the reasons for the condonation of delay, the

defendant cannot turn to contend that he was not aware

of the suit proceedings.

Counsel also submitted that assuming for a while

the reason assigned is true but that by itself would be no

ground to condone the delay. Hence, the First Appellate

Court has erred in condoning the delay. Each day's delay

has to be explained. The defendant has not explained the

delay in this regard.

Sri. Aravind Kulkarni, also submitted that after the

disposal of the suit, the plaintiff filed execution petition.

The notice was served and he did not contest the case.

Hence, the Court appointed Commissioner and

accordingly, sale deed came to be executed in favor of

plaintiff. Counsel therefore, submits that the First

Appellate Court ought to have taken into consideration of

these facts.

Lastly, he submitted that viewed from any angle the

order lacks judicial reasoning. Accordingly, he submitted

that the petition may be allowed.

6. Sri.M.M.Patil, counsel for respondent justified

the order passed by the First Appellate Court.

Next, he submitted that the Court in extenso

referred to the reasons assigned in the application filed for

condonation of delay.

A further submission was made that the defendant

was diligent in prosecuting the matter. The delay caused

in filing the appeal is not intentional.

Counsel vehemently urged that the Apex Court in

number of cases has held that if a sufficient cause is

shown, then the delay to be condoned.

Lastly, he submitted that the petitioner has not

made out any good grounds to interfere with the order

and accordingly, he prayed for the dismissal of the

petition.

Counsel for respondent relied upon the following

decisions:-

1. UMMER VS POTTENGAL SUBIDA & ORS -

Civil Appeal Nos.2599-2600/2018 disposed of on 08.03.2018.

2. BANWARI LAL (D) BY LRS. & ANR. VS BALBIR SINGH - Civil Appeal No. 6567/2015 disposed of on 25.08.2015.

3. N. MOHAN VS R. MADHU - 2020 SAR (CIV)

141.

   4. GUNDAPPA          CHIKKAPPA         MAROL     SINCE
        DECEASED BY HIS LR'S AND OTHERS VS
        SIDDAPPA        NINGAPPA         GORAWAR         AND
        ANOTHER - HCR 2021 KANT 650.


        7.    Heard,    the   contents    urged    on    behalf   of

petitioner and respondent and perused the records with

care.

The point which arise for consideration is, whether

the First Appellate Court justified in condoning the delay?

The facts have been sufficiently stated. The suit was

filed for specific performance. Despite service of notice,

the defendant did not contest the suit. Hence, the

defendant was placed ex-parte. The trial Court considered

the material on record and decreed the suit.

It is significant to note that the defendant filed a

Miscellaneous Petition under Order 9 Rule 13 of CPC for

setting aside the ex-parte decree passed in

O.S.No.224/2012. The defendant contended that the suit

summons was served upon him and he had engaged the

services of Advocate by name P.V. Uttarkar and instructed

him to appear on his behalf and signed the vakalathnama.

It is also stated that he contacted Advocate P.V.Uttarkar

after notice of execution petition in No.47/2014. The

notice was served on him on 22.02.2015 and he was told

that Advocate P.V.Uttarkar was not attending the Court

due to ill-health. He applied for certified copy of judgment

and decree passed in O.S.No.224/2012 and were supplied

on 26.02.2015. By then, Advocate P.V.Uttarkar died on

03.03.2015. Thereafter, he came to know that Advocate

P.V. Uttarkar had not filed vakalathnama in the original

suit proceedings. Hence, he was placed ex-parte. The

plaintiff contested the petition and filed objections. The

Court heard the matter and ultimately dismissed the

petition on 13.03.2019.

As against the dismissal of the petition, the

defendant preferred an appeal before this Court in

M.F.A.NO.101804/2019. It is relevant to note that counsel

for defendant filed a memo seeking withdrawal of the

appeal. The memo was taken on record and the appeal

was dismissed as withdrawn on 11.06.2019.

After the withdrawal of the appeal, the defendant

filed an appeal before the First Appellate Court and

challenged the judgment and decree passed in

O.S.NO.224/2012. He also made an application under

Section 5 of the Limitation Act to condone the delay of

1778 days in filing the appeal. It is relevant to note that in

the affidavit, the defendant has stated that the appeal

(M.F.A.No.101804/2019) was withdrawn on insistence of

jurisdictional issue and the matter was closed on

11.06.2019. Hence, there is a delay. It is also stated that

he has every possibility of succeeding in the appeal and if

the delay is not condoned, he will be put to greater

hardship.

The plaintiff being the respondent in regular appeal

(R.A.No.106/2019) filed a memo stating that the

statement of objections filed to the main appeal may be

treated as objections to the application. It is noticed that

the plaintiff filed detailed objections contending that the

defendant being an Advocate was aware of the original

suit proceedings. He has not shown sufficient cause to

condone the delay. It is also stated that after the disposal

of the suit, execution petition was filed in Ex. No. 47/2014

and the appellant appeared in the execution case. But he

did not execute the sale deed. The sale deed was

executed by the Court Commissioner in favor of plaintiff

on 14.08.2017. Accordingly, he prayed for the dismissal of

the appeal. The evidence was recorded. The First

Appellate Court condoned the delay. Hence, this petition is

filed challenging the order on various grounds as set out in

the memorandum of petition.

While addressing arguments, Sri.Aravind D. Kulkarni

learned counsel for petitioner submitted that the

defendant being an Advocate has misled the First

Appellate Court and the he has sworn to false affidavit. In

his chief - examination, he has stated that the

Miscellaneous First Appeal (MFA No.101804/2019) was

withdrawn with a leave to approach First Appellate Court.

Counsel strenuously urged there is no such permission or

leave granted by the High Court. Learned counsel has

drawn the attention of the Court to the evidence recorded

by the First Appellate Court and also the order passed by

the High Court.

I have perused the evidence with utmost care. The

defendant Somappa, Son of Gangadharappa Rotti has

sworn to an affidavit on 05.01.2021. In paragraph 7, he

has stated as under:-

"7. £À£Àß «gÀÄzÀÞ JzÀÄgÀÄUÁgÀ£ÀÄ ¸Àzg À À rQæAiÀÄ CªÀÄ®§eÁªÀuU É ÁV zÀgS À Á¸ÀÛzÀ £ÉÆÃn¸ÀÄ £À£U À É §AzÀ £ÀAvÀgÀ £À£U À É ¸Àzg À À zÁªÉAiÀÄ DzÉñÀzÀ §UÉÎ w½zÀ PÀÆqÀ¯ÃÉ £Á£ÀÄ ¸Àzg À À KPÀv¦ À ð ü DzÉñÀª£ À ÀÄß ¥À²æ ß¹ ªÀiÁ£Àå ¥Àz æ sÁ£À ¢ªÁt £ÁåAiÀiÁ¢üñÀgÀ £ÁåAiÀiÁ®AiÀÄ, UÀzU À À EªÀg° À è «Ä¸À¯ÃÉ ¤AiÀÄ¸ï £ÀA§gÀ 9/2015 £ÀÄß zÁR°¹zÉÝ. ¸Àzg À À CfðAiÀÄÄ ZÀªPÀ ²À AiÀiÁV ¢£ÁAPÀ 13-3-2019 gÀAzÀÄ PÁ®«¼ÀA§ CfðAiÀÄ£ÀÄß zÁR°¹gÀĪÀÅ¢®èªAÉ zÀÄ ¸Àzg À À CfðAiÀÄ£ÀÄß ªÀeÁUÉƽ¹gÀĪÀgÀÄ. £ÀAvÀgÀ £À£ÀÄ ¸Àzg À À DzÉñÀª£ À ÀÄß ¥À²æ ß¹ ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄ zsÁgÀªÁqÀz° À è JªÀiï.J¥sï.J. £ÀA.101804/2019 £ÀÄß zÁR°¹zÉÝ. ¸Àzg À À ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄÄzÀªg À ÀÄ PɼÀ £ÁåAiÀiÁ®AiÀÄzÀ°è DzÀ KPÀv¦ À ð ü DzÉñÀª£ À ÀÄß ¥À²æ ß¹ ªÉÄî䣫 À AiÀÄ£ÀÄß ¸À°è¸® À Ä ¤zÉÃð±À£À ¤ÃrzÀ ¥ÀPæ ÁgÀ £Á£ÀÄ ¸Àzg À À ªÉÄî䣫 À AiÀÄ£ÀÄß GZÀÑ £ÁåAiÀiÁ®AiÀÄ¢AzÀ ¢£ÁAPÀ 11-6-2019 gÀAzÀÄ »A¥Àqz É ÀÄ ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄPÉÌ F ªÉÄî䣫 À AiÀÄ£ÀÄß zÁR°¸À®Ä 1778 ¢£ÀU¼ À À PÁ®«¼ÀA§ªÁVzÉ."

It is significant to note that he was cross examined

by counsel for plaintiff on 02.02.2021. He has denied the

suggestion that no permission or leave was granted to file

appeal before the First Appellate Court.

I have also perused the order passed in MFA with

utmost care. The operative portion of order reads as

under.

"The learned counsel for the appellant files a memo seeking permission to withdraw the appeal.

2. The memo is taken on record.

3. In view of the said memo, the appeal is dismissed, as withdrawn.

4. Office is directed to return the certified copy of the impugned order on substitution of Xerox copy."

If we read the above order carefully, one can easily

understand that the appeal is simply withdrawn. The

permission or leave is not granted as alleged by the

defendant. In my opinion, learned counsel for petitioner is

justified in adhering to the contention that the statement

made by the defendant for condonation of delay are

incorrect.

Sri.M.M.Patil, learned counsel for defendant

contended that the First Appellate Court has exercised the

discretionary powers and justified in condoning the delay.

In reply Sri. Aravind D. Kulkarni, seriously opposed

the said contention. Counsel submitted that in an ordinary

circumstance, the plaintiff would not have opposed the

delay. But in the instant case, the defendant being an

Advocate was not vigilant in prosecuting his own claim.

Counsel stressed more on the conduct of defendant. He

submitted that the defendant being an Advocate has made

incorrect statements. He has misled the Court. Therefore,

he sought to urge that the conduct of defendant may be

taken note of and appropriate orders may be passed.

I have considered the rival contentions with care.

In the backdrop of the specific contentions, what is

required to be considered and answered is whether the

defendant has made statements which are against the

records and application for condonation of delay is

actuated with mala fide and cause pressed is untrue?

To answer this, I propose to refer to the law relating

to limitation.

Statutes of limitation are designed to effectuate a

beneficent public purpose viz., to prevent the taking away

from one what he has for long been permitted to consider

his own and on the faith of which he plans his life, habits

and expenses. Law of Limitation is an Act of peace. The

law of Limitation is founded on public policy, its aim being

to secure the quiet of the community, to suppress fraud

and perjury, to quicken diligence and to prevent

oppression. It seeks to bury all acts of the past which have

not been agitated unexplainably and have from lapse of

time become stale. The object of the rules of limitation is

prevention and not curative. They interpose a statutory

bar after a certain period and give a quietus to suits to

enforce an existing right. Lapse of limitation ordinarily

bars only the remedy and does not extinguish the title of

the claimant.

It is needless to say that the rules of limitation are

founded on considerations of public policy and the

provisions of the Limitation Act dealing with the limitation

are required to be interpreted with the approach which

advances the cause of public policy and not otherwise. The

object of limitation laws is to compel a litigant to be

diligent in seeking remedies in a court of law and put bar

on stale claims. The interest of society requires that the

party should be put to litigation keeping in view of its

nature. The law assists the vigilant and not those who

sleep over their rights.

Bearing these principles in mind, let me see whether

the defendant was vigilant and diligent. As already noted

above, the suit came to be decreed on 17.07.2014.

Despite service of notice, he chose not to contest the case.

The plaintiff-initiated execution proceedings. In the said

proceedings also notice was served and he did not contest

the case. Hence, Court was constrained to appoint

Commissioner and sale deed was executed in favor of

plaintiff on 14.08.2017. The plaintiff became the absolute

owner of the suit property.

The defendant contended that he was prosecuting

the case bona fide and, in this Court, also, he adhered to

the contention that he is prosecuting the litigation bona

fide and that the First Appellate Court justified in

condoning the delay.

I am unable to accept the said contention. Limitation

Act is a substantive law and its provision have to be

adhered to in a manner than over a valuable right accrues

in favor of one party, as a result unexplained sufficient of

reasonable cause and directly as a result of negligence,

default or inaction of the other party, such a right cannot

be taken away lightly and in a routine manner.

In the present case, the sale deed has been

executed and the plaintiff has become the absolute owner

of the property in question and the right which has

accrued to the plaintiff should not have been disturbed at

the instance of a negligent litigant.

The law is well settled that delay cannot be excused

as a matter of 'judicial generosity' in any special case. An

order extending time should give sufficient indication that

the discretion given by the law has been judicially

exercised. The law is also well settled that an order

excusing delay is not final and is liable to be questioned at

a later stage. But an Appellate Court will not ordinarily

interfere with the discretion exercised by the Court below.

But the differentiating factor is whether the exercise of

discretionary power is just and proper.

It is needless to say that when false averments are

made in the application and the acts and conduct of the

applicant are also blame worthy delay will not be

condoned.

In the present case, the defendant has made

averments which are against the records. The material on

record would clearly depict that the application actuated

with mala fides, and the cause pressed for the

condonation of delay is untrue. Hence the delay will not be

excused.

It is perhaps well to observe that a plea for liberal

construction of Section 5 of the Limitation Act so as to

lead to the jettisoning of the law of limitation itself cannot

be accepted. The law of limitation is not an equitable

statute. It is a statue of repose. For condonation of delay,

sufficient cause should be done in good faith. Of the

explanation does not smack of malafides or it is put forth

as a part of dilatory strategy of the Court must show

utmost consideration to the suitor. But if the allegation

made in the application to condone the delay per se

appears to be false and in fact appear to have been made

intentionally, applicant is not entitled to the discretionary

relief under Section 5 of the Limitation Act.

It is relevant to note that the First Appellate Court

ignoring all these factual aspects erroneously proceeded to

entertain the time barred appeal and condoned the delay

by passing the order on 12.04.2021.

I may venture to say that the First Appellate Court

has failed to have regard to relevant considerations and

disregarded relevant matters.

I have no hesitation to say that the First Appellate

Court has exercised its discretion capriciously and

arbitrarily. The exercise of power by the First Appellate

Court is improper and unwarranted. In my considered

opinion, the order is unsustainable in law.

8. For the reasons stated above, the Civil

Revision Petition is allowed. The order dated:12.04.2021

passed by the Court of Additional Senior Civil Judge,

Gadag on I.A.No.1 in R.A.No.106/2019 is set-aside.

Sd/-

JUDGE

TKN/VMB-1