Gurunath S/O. Hanamant ... vs Gangappa S/O. Hanamant ...
2021 Latest Caselaw 1673 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

            DATED THIS THE 2ND DAY OF MARCH 2021

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                      CRP.NO.100003/2021
BETWEEN

GURUNATH S/O HANAMANT GADIWADDAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O WADDAR GALLI, ATHANI-591 304. DIST: BELAGAVI.


                                                 ... PETITIONER

(BY SRI.CHETAN MUNNOLLI, ADV.)

AND

GANGAPPA S/O HANAMANT GADIWADDAR,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O WADDAR GALLI, ATHANI-591 304. DIST: BELAGAVI.


                                                ... RESPONDENT
(BY SRI.SANJAY S.KATAGERI, ADV.)


      THIS CRP IS FILED UNDER SECTION 115 OF CPC SEEKING TO
SET ASIDE THE ORDER DATED 05.12.2020 ON I.A.NO.1 PASSED IN
R.A.NO.70/2020 ON THE FILE OF THE VII ADDL. DISTRICDT AND
SESSIONS   JUDGE,   BELAGAVI     SITTING   AT   CHIKKODI   AND
CONSEQUENTY DISMISS THE REGULAR APPEAL.


      THIS CRP COMING ON FOR ADMISSION THIS DAY, THE COURT
MADE THE FOLLOWING:
                                    2




                                 ORDER

This captioned civil revision petition is filed by the

plaintiff challenging the order dated 05.12.2020 on

I.A.No.1 in R.A.No.70/2020 passed by the VII Additional

District & Sessions Judge, Belagavi sitting at Chikkodi,

which is filed seeking condonation of delay of 422 days in

filing the appeal.

2. The present petitioner has filed a suit for

declaration and injunction in O.S.No.97/2016 on the file of

the Senior Civil Judge, Athani. The respondent/defendant

did not contest the proceedings by filing written statement.

The suit came to be decreed by judgment and decree dated

15.11.2018. The respondent herein being aggrieved by the

judgment and decree passed in O.S.No.97/2016 has filed

an appeal in R.A.No.70/2020. Since there was a delay in

filing the appeal, the respondent herein filed an application

in I.A.No.1. The application was strongly resisted by the

petitioner herein. The lower appellate Court having

examined the rival contentions and having also given its

anxious consideration to the averments made in the

affidavit filed in support of the application has proceeded to

allow the application and thereby condoned the delay and

restored the regular appeal. The present petitioner/plaintff

who is the benefit of the decree passed by the court at first

instance is before this Court.

3. Learned counsel for the petitioner would

vehemently argue and contend before this Court that the

order under challenge suffers from material irregularity and

there is grave error committed by the lower appellate Court

in allowing the application filed by the respondent seeking

condonation of delay of 422 days in filing the appeal. The

grievance of the petitioner before this Court is that the

respondent herein was not diligent in contesting the suit.

He would further submit to this Court that there is

inordinate delay in preferring the regular appeal

challenging the judgment and decree passed in

O.S.No.97/2016. The learned counsel would submit to this

Court that no satisfactory reasons are assigned in the

affidavit, but the lower appellate Court has in fact found

fault with the advocate on record who has defending the

respondent. In the absence of cogent reasons assigned by

the respondent, he would submit to this Court that the

lower appellate Court has taken a liberal view in allowing

the application and the same resulted in miscarriage of

justice to the petitioner. He would further submit to this

Court that, since there is inordinate delay, it was

incumbent on the part of the respondent to lead ocular

evidence and since this exercise is not done by the

respondent, the lower appellate Court ought to have

rejected the application and consequently dismissed the

appeal. To buttress his arguments he would rely upon the

judgment rendered by this Court in the case of D.Abdullah

Sab and Others Vs Syed Jabbar reported in (2014) 4

KCCR 3539. Placing reliance upon the aforesaid judgment,

he would submit to this Court that, since the application is

strongly resisted by the petitioner herein and several

defences are taken in objection, the respondent was

required to offer a satisfactory explanation by leading

ocular evidence in regard to delay caused in filing the

appeal. Since this exercise is not done, he would submit to

this Court that the order under challenge is liable to be set

aside and consequently the appeal is liable to be dismissed.

4. Per contra, learned counsel appearing for the

respondent/defendant supporting the reasons assigned by

the lower appellate Court would submit to this Court that

the appeal preferred by the respondent herein is a regular

first appeal and valuable rights are involved. He would

submit to this Court that since the suit is one for

declaration and injunction and question of title is involved

and appeal being continuation of a suit, the lower appellate

Court has dealt with all these material aspects and by

placing reliance on several judgments of this Court has

rightly allowed the application. The order under challenge

would not cause any prejudice to the present petitioner

herein. He would further submit that, on the contrary, if

the delay is not condoned, the valuable rights of the

respondent are at stake and that would ultimately result in

miscarriage of justice. In this background, he would submit

to this Court that the order under challenge does not

warrant any interference by this Court.

5. Heard the learned counsel for the petitioner and

respondent at length. I have meticulously examined the

reasons assigned by the lower appellate Court. What

emerges from the records is that, of course there is

inordinate delay of 422 days in preferring the appeal. It is

trite law that adversial litigations cannot be put at rest on

hyper technical methods. Expression "sufficient cause"

should receive a liberal construction. The Hon'ble Apex

Court in catena of judgments has held that "sufficient

cause" should be considered with pragmatism in justice

oriented approach rather than technical detection of

sufficient cause for explaning every day's delay. The

respondent is aggrieved by the judgment and decree

passed in O.S.No.97/2016 wherein the petitioner is

declared to be the absolute owner and consequentially

injunction is granted. It is trite law that appeal is

continuation of a suit. The lower appellate Court being a

final fact finding authority is required to re-assess the

entire oral and documentary evidence. Bearing this

material aspects, the lower appellate Court has adopted a

liberal approach thereby proceeded to allow the

application. The discretion exercised by the lower appellate

Court is in accordance with law and it is judicious

discretion.

6. The judgment cited by the learned counsel for

the petitioner is not applicable to the present case on hand.

In the judgment cited supra, it was a case where the ex-

parte decree was challenged by filing a petition under

Order 9 Rule 13 of CPC. The procedure contemplated under

Order 9 Rule 13 of CPC is quite different in an application

filed seeking condonation of delay in an appeal filed under

Section 96 of CPC. It is trite law that in an application

under Order 9 Rule 13, the party is seeking setting aside of

an ex-parte decree and thereby it is mandate on the part

of the party seeking setting aside the ex-parte decree to

lead ocular evidence and also documentary evidence.

7. In that view of the matter, the reliance placed

by the learned counsel for the petitioner is not applicable to

the present case on hand. A close reading of Section 5 of

the Limitation Act makes it very clear that the legislature

had advisedly, left the term "sufficient cause" undefined

and unillustrated. The said term is kept elastic and

unfettered discretion has been conferred on the Courts to

do substantial justice considering the facts and

circumstances of the case. The Hon'ble Apex Court in

catena of judgments has held that Court should not

succumb to the procedural wrangles and tangles, hyper

technicalities and mystic maybes. Justice should not be

sacrificed on the alter of technicalities. The lower appellate

Court has adopted liberal approach by exercising judicial

discretion. This Court exercising supervisory jurisdiction

cannot substitute its view by subjective satisfaction.

8. For the reasons stated supra, the writ petition

being devoid of merits is accordingly dismissed.

9. In view of dismissal of the writ petition,

I.A.No.1/2021 does not survive for consideration

accordingly, the same is disposed of.

Sd/-

JUDGE MBS/-