Karnataka High Court
Shiddanagouda S/O Basanagouda ... vs Shivalingappa S/O Guddappa ... on 24 January, 2022
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
CRP NO.100001 OF 2016
BETWEEN :
SHIDDANAGOUDA
S/O BASANAGOUDA PATIL
SINCE DECEASED BY HIS LR'S
1. NAGANAGOUDA
S/O SHIDDANAGOUDA PATIL
AGE: 42 YEARS, OCC: AGRICULTURE
R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI.
2. SMT.SUJATHA
W/O KARABASAPPA ANGADI
AGE: 45 YEARS, OCC: HOUSEHOLD
R/O KADUR, TQ: HIREKERUR
DT: HAVERI.
3. SMT.PARVATHI
W/O NARENDRA MADAL
AGE: 43 YEARS, OCC: HOUSEHOLD
R/O HALEDADDI ROAN, HONNALI
TQ: HONNALI, DT: DAVANGERE.
... PETITIONERS
(BY SRI.P.G.MOGALI, ADVOCATE)
2
AND:
1. SHIVALINGAPPA
S/O GUDDAPPA YATTINAHALLI
AGE: 75 YEARS.
2. NINGAPPA
S/O SHIDLINGAPPA YATTINAHALLI
AGE: 45 YEARS.
3. SHIDDAPPA
S/O SHIDLINGAPPA YATTINAHALLI
AGE: 43 YEARS.
4. MANJAPPA
S/O SHIDLINGAPPA YATTINAHALLI
AGE: 40 YEARS.
ALL ARE R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI.
5. SMT.SUSHILAVVA
W/O BHEEMAPPA MARADIGERA
AGE: 35 YEARS
R/O CHIKKABBAR
TQ: HIREKERUR, DT: HAVERI.
6. SMT.KARIYAVVA
W/O MANJAPPA SHANKARANAHALLI
AGE: 38 YEARS
R/O HALLUR, TQ: HIREKERUR
DT: HAVERI.
7. SMT.SHARADA
W/O MANJAPPA BHOOMALLER
AGE: 32 YEARS
R/O BULLAPUR
TQ: HIREKERUR, DT: HAVERI.
3
8. SMT.PREMILA
W/O DANAPPA KARADER
AGE: 30 YEARS
R/O KALAGONDA
TQ: BYADGI, DT: HAVERI.
9. SANNADURUGAPPA
S/O GUDDAPPA YATTINAHALLI
AGE: 65 YEARS
R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI.
SINCE DECEASED BY HIS LR'S,
(a) BEERAPPA
S/O SANNADURGAPPA YATTINAHALLI
AGE: 40 YEARS
OCC: AGRICULTURE
R/O KANAVISIDDAGERI
TQ: RATTIHALLI (HIREKERUR)
DT: HAVERI.
(b) SHIVANAGAPPA
S/O SANNADURGAPPA YATTINAHALLI
AGE: 35 YEARS
OCC: AGRICULTURE
R/O KANAVISIDDAGERI
TQ: RATTIHALLI (HIREKERUR)
DT: HAVERI.
(c) KARIYAPPA
S/O SANNADURGAPPA YATTINAHALLI
AGE: 30 YEARS
OCC: AGRICULTURE
R/O KANAVISIDDAGERI
TQ: RATTIHALLI (HIREKERUR)
DT: HAVERI.
4
(d) HEGGAPPA
S/O SANNADURGAPPA YATTINAHALLI
AGE: 28 YEARS
OCC: AGRICULTURE
R/O KANAVISIDDAGERI
TQ: RATTIHALLI (HIREKERUR)
DT: HAVERI.
(e) SMT.GIRIJAVVA
W/O NAGAPPA BUMALLER
AGE: 32 YEARS
OCC: HOUSEHOLD, R/O KANAVISIDDAGERI
TQ: RATTIHALLI (HIREKERUR)
DT: HAVERI.
(f) SMT.SHARAVVA
W/O KARIYAPPA TONDARAMANI
AGE: MAJOR
R/O KANAVISIDDAGERI
TQ: RATTIHALLI (HIREKERUR)
DT: HAVERI.
10. DURUGAPPA
S/O NEELAPPA YATTINAHALLI
AGE: 45 YEARS
R/O BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
11. HANUMAPPA
S/O NEELAPPA YATTINAHALLI
AGE: 42 YEARS
R/O BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
12. CHANDRAPPA
S/O NEELAPPA YATTINAHALLI
AGE: 40 YEARS
R/O: BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
SINCE DECEASED BY HIS LR'S,
5
(a) SMT.LAXMAVVA
W/O CHANDRAPPA YATTINAHALLI
AGE: MAJOR
OCC: HOUSEHOLD
R/O: BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
(b) SMT.JYOTEMMA
W/O MALATESH KUMSHI
AGE: MAJOR
R/O MADAGAHARANALLI
TQ: SHIKARIPUR, DT: SHIVAMOGGA.
(c) SMT.SHEELAVVA
W/O GUDDAPPA ANCHI
AGE: MAJOR
R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI.
(d) SMT.SAVITRAVVA
W/O RAGHAVENDRA MANDIGER
AGE: MAJOR
R/O CHIKKABBAR
TQ: HIREKERUR, DT: HAVERI.
(e) SMT.AKKAMMA
D/O CHANDRAPPA YATTINAHALLI
AGE: MAJOR
R/O BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
(f) LOKESH
S/O CHANDRAPPA YATTINAHALLI
AGE: MAJOR
R/O BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
6
13. SMT.GOURAVVA
W/O IRAPPA BHOOMALLER
AGE: 55 YEARS
R/O BULLAPUR, TQ: HIREKERUR
DT: HAVERI.
14. GUDDAPPA
S/O MALLAPPA YATTINAHALLI
AGE: 50 YEARS
R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI.
15. REVANEPPA
S/O MALLAPPA YATTINAHALLI
AGE: 48 YEARS
R/O KANAVISIDDAGERI
TQ: HIREKRUR, DT: HAVERI.
16. ISHAPPA
S/O MALLAPPA YATTINAHALLI
AGE: 42 YEARS
R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI.
17. SMT.DURAGAVVA
W/O BASAPPA KOTIGERA
AGE: 35 YEARS
R/O KANIYA, TQ: SHIKARIPUR
DT: SHIVAMOGGA.
18. SMT.SHIDDAVVA
W/O BASAPPA PURADAVAR
AGE: 45 YEARS
R/O HARANAHALLI, TQ: SHIKARIPUR
DT: SHIVAMOGGA.
19. SMT.CHANNAVVA
W/O GUDDAPPA MASUR
7
AGE: 40 YEARS
R/O KANAVISIDDAGERI
TQ: HIREKERUR, DT: HAVERI. ...RESPONDENTS
(BY SRI DINESH M.KULKARNI, ADVOCATE FOR R10 TO 13;
NOTICE TO R2, 3, 4, 9(d), 9(f), 12(a), 12(b), 12(f),
14, 15, 16 and 19 are held sufficient;
R1, 5 TO 8, 9(a), 9(b), 9(c), 9(e), 12(c), 12(d),
12(e), 17 and 18 served remained unrepresented.)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CODE OF CIVIL PROCEDURE.
THIS CIVIL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDER THROUGH VIDEO
CONFERENCING THIS DAY, SITTING AT BENGALURU, THIS
COURT MADE THE FOLLOWING:
ORDER
Sri.P.G.Mogali, learned counsel for petitioners and
Sri.Dinesh M.Kulkarni, learned counsel for respondents 10
to 13, have appeared in-person.
2. This is a petition from the Court of Senior Civil
Judge & JMFC, Hirekerur.
3. The petition averments are as under:-
It is the case of plaintiff that his father had
purchased the property bearing Sy.No.13/2 measuring 4
Acres for valuable consideration under a registered sale
deed dated:17.10.1977 from respondent No.1 and the
father of respondents 2 to 8. Pursuant to the sale deed,
the name of the father of the petitioner was mutated
through M.E.No.541 dated:20.11.1977. Since then the
family of the petitioner has been cultivating the said land.
It is said that the father of the petitioner has dug the
borewells and has developed the land as a garden land.
It is stated that after the death of the father of the
petitioner, respondents 10 to 13 filed a suit for partition
and separate possession as against respondents 1 to 10,
15 to 20 in which the land purchased by the father of the
petitioner was also included and the father of the petitioner
was also arrayed as defendant No.20 in the suit. It is the
contention of the petitioner that his father had engaged an
advocate but he retired from the case without notice. The
suit came to be decreed.
Subsequently, FDP was filed in the said proceedings,
the father of the petitioner was not served with notice and
during the pendency of the final decree proceedings, the
father died. It is also said that on 27.01.2003 some people
came near the land in dispute and it is only then, the
petitioner came to know about the proceedings.
Thereafter, petitioner filed a suit for declaration of
ownership and consequential relief of perpetual injunction.
It is stated that on 07.12.2007, the suit was posted
for cross examination of PW-1 and plaintiff failed to appear
on that day and the suit was dismissed for default. Hence,
plaintiff filed Civil Miscellaneous in No.02/2008 on
24.01.2008. The plaintiff did not take steps, hence the
miscellaneous petition was dismissed on 25.04.2009.
Thereafter, plaintiff filed an application (IA.No.2) under
Section 151 of CPC for restoration of the petition. The
application came to be rejected. The order of dismissal was
challenged before the High Court in CRP No.1140/2009.
The revision petition also came to be dismissed on
01.07.2015.
As things stood thus, plaintiff filed one more petition
in Civil Misc No.18/2011 under Order 9 Rule 4 read with
Section 151 of CPC to set aside the order dated
25.04.2009 passed in Miscellaneous No.02/2008. There
was a delay in filing the petition. Hence, an application
under Section 5 of the Limitation Act was filed. The Court
rejected the application for condonation of delay and
consequently the petition came to be dismissed. Hence,
this Revision Petition is filed.
4. Sri.P.G.Mogali learned counsel for petitioner
submits the impugned order is contrary to the facts and
law.
Next, he submitted that the father of the plaintiff had
purchased the land in dispute under a registered sale deed
in the year 1977. The question of valuable right to
immovable property is involved in the suit. Hence, the
Court ought to have condoned the delay and allowed the
petition.
A further submission was made that the plaintiff did
not get the correct address of un-served respondents.
Hence, steps were not taken in time.
It is also submitted that the petition was dismissed
for not taking of steps in respect of respondents 1 to 9, 13,
15, 18 to 20 and other respondents i.e., respondents 8,
11, 14, 16 and 17 were served but remained absent. On
25.04.2009, the case i.e., the Civil Miscellaneous was
posted for taking steps in respect of un-served
respondents. On the very same day, the petition was
dismissed. Counsel vehemently submitted that the Court
ought not to have dismissed the entire petition.
It is further submitted that in Civil Misc.18/2011, the
respondents 11 to 14 were the only contesting
respondents. They were served with notice in
C.Misc.No.02/2008 and were represented through their
advocates. Hence, the Court could not have dismissed the
petition in Civil Misc.No.02/2008.
Learned counsel strenuously urged that the
petitioner is diligent in prosecuting the case. The delay has
been explained properly. The Court ought to have
condoned the delay.
Lastly, he submitted that viewed from any angle, the
order lacks judicial reasoning. Accordingly, he submitted
that the petition may be allowed.
Counsel for petitioners relied upon the following
decisions:
1. ILR 2000 KAR 2921 - G.P. SRIVASTAVA VS
R.K.RAIZADA AND OTHERS.
2. ILR 2007 KAR 1893 - THE STATE OF
KARNATAKA REPRESENTED BY REVENUE
SECRETARY VS H.B.MUNIVENKATAPPA.
3. ILR 2003 KAR 3868 - CHANDRABHAGABAI
KRISHNASA BASAVA @
CHANDRABHAGABAI AND OTHERS VS
VASANT.
4. (2002) 10 SCC 673 - MAHENDRA RATHORE
VS OMKAR SINGH AND OTHERS.
5. (2009) 1 SCC 689 - STATE OF UTTAR
PRADESH AND ANOTHER VS JAGDISH
SHARAN AGRAWAL AND OTHERS.
6. 1960 MYS.L.J 135 - SHIVRAYA VS
SHARNAPPA AND OTHERS.
5. Sri.Dinesh M.Kulkarni learned counsel for
respondents 10 to 13 justified the order dated:28.07.2015
passed in Civil Miscellaneous No.08/2011.
Next, he submitted that the petitioner is not diligent
in prosecuting the claim.
A further submission was made that the suit came to
be dismissed for default in the year 2007. The previous
/earlier Civil Miscellaneous No.02/2008 was dismissed in
the year 2008. The application filed for recalling the
petition was also dismissed and as against the dismissal of
the application, Civil Revision Petition was filed before this
Court and Revision Petition was also dismissed.
In the year 2011, the petitioner filed Civil
Miscellaneous petition to recall the order of dismissal of
earlier Civil Miscellaneous petition.
Counsel vehemently submitted that the petitioner
has not stated the number of days in the application. The
petitioner has not shown sufficient cause to condone the
delay in filing the petition.
Counsel strenuously urged that each day's delay has
to be explained. The petitioner has not explained the delay
in this regard. Hence, the petition is devoid of merits and
the same may be dismissed.
6. Heard the contentions urged on behalf of
respective parties.
The points which require consideration are :
1. Whether petitioner has made out sufficient
cause to condone the delay?
2. Whether the Court's discretion to refuse
extension of time is just and proper?
The case really falls within a small compass. The suit
was simple, but as it went on petition, it has widened out.
The plaintiff brought an action for declaration and other
consequential reliefs.
It is not in dispute that the original suit came to be
dismissed on 07.12.2007. The petitioner filed a Civil
Miscellaneous petition (Civil Misc.No.02/2008). The
petitioner failed to take steps, hence the miscellaneous
petition was dismissed on 25.04.2009. It is significant to
note that an application (I.A.No.2) was filed to recall the
order of dismissal. The said application came to be
dismissed on 01.08.2009. The order of dismissal was
challenged before this Court in CRP No.1140/2009. The
revision petition was contested and the same came to be
dismissed on 01.07.2015.
As things stood thus, the petitioner filed Civil
Miscellaneous in the year 2011 in Civil Misc.No.18/2011
under Order 9 Rule 4 read with Section 151 of CPC to set
aside the order of dismissal in Civil Miscellaneous
No.02/2008 dated:25.04.2009.
While addressing argument, learned counsel
Sri.P.G.Mogali vehemently urged that the petitioner was
diligent in prosecuting the matter; the refusal to condone
the delay is not justified and the Court ought to have
condoned the delay. It is submitted that the order of
dismissal of petition is illegal and is opposed to the facts
and circumstances of the case.
Counsel vehemently urged that the Apex Court in
number of cases has held that if sufficient cause is shown
then the delay to be condoned.
I have considered the above said contention urged
on behalf of the plaintiff with care. The contention urged
before me is to the point of limitation and the plaintiff's
contention is that he was diligent in prosecuting the claim
hence, the court ought to have condoned the delay. I do
not think that this argument can possibly prevail.
It is relevant to note that plaintiff filed a Civil
Miscellaneous petition in the year 2011. There was delay in
filing the petition. Hence, an application under Section 5 of
the Limitation Act was filed to condone the delay. The
Court considered the contentions urged by the parties and
concluded that the petitioner has not mentioned the
number of days in affidavit; the application is silent
regarding number of days delay caused in filing the
petition. The Court also observed that the petitioner has
not produced any documentary evidence to prove that he
was constrained by reasonable ground and accordingly, it
was held that the petitioner has failed to make out
sufficient cause to condone the delay. Hence, the petition
was dismissed.
As already noted above, what is required to be
considered is whether the petitioner was vigilant and
diligent in prosecuting his claim so as to condone the
delay.
Before answering the points, let us have a bird's eye
view on the principle of limitation.
The principle enunciated under Section 5 of the
Limitation Act is that a Court is vested with judicial
discretion to admit an appeal or an application filed after
the expiry of the period of limitation on sufficient cause
being shown for the delay.
It must be remembered that the Court has full
discretion to refuse extension of time, but this discretion,
like other judicial discretions, must be exercised with
vigilance and circumspection according to justice, common
sense and sound judgment. It must not be exercised in
arbitrary, vague and fanciful manner. It is perhaps well to
observe that delay cannot be condoned as a matter of
"judicial generosity". Condonation of delay cannot be
claimed as of right.
Having regard to the words "may be admitted" in
Section 5, the Court has a discretion, even where sufficient
cause is shown, in not admitting an appeal filed after time,
on the ground that the extension of time under that
Section is a matter of concession or indulgence to the
appellant/petitioner who has come late and cannot be
claimed as of right.
The proof of "sufficient cause" is a condition
precedent for the exercise of the discretionary jurisdiction
vested in the Court. What counts is not the length of the
delay but the sufficiency of the cause.
The Court should not come to the aid of a party
where there has been unwarrantable delay in seeking the
statutory remedy. Any remedy must be sought with
reasonable promptitude having regard to the
circumstances.
No doubt there are authorities to say that the words
"sufficient cause" should receive a liberal construction so
as to advance substantial justice. What is sufficient cause
cannot be described with certainty for the reasons that
facts on which questions may arise may not be identical.
What may be sufficient cause in one case may be
otherwise in another. Hence, the whole thing should be
determined with reference to the circumstances of each
particular case. Each case has to be decided on its own
facts. But it must not be lost of sight that the petitioner
will have to prove that he was diligent. Further, he will
have to explain day-to-day delay from the last day of
limitation.
It is needless to say that the High Court will interfere
where the lower Court has exercised its discretion
capriciously, arbitrarily or in a judicially unsound manner
and has acted without proper legal material to support its
decision.
Bearing these principles, let me see whether the
discretion exercised by the Court is just and proper?
The petitioner has pleaded that his wife was
admitted to the hospital hence there is a delay. But there
is really nothing on the record on which such a plea can
effectively be based. The mere plea of illness is not
sufficient. It is needless to say that it is for the Court to
consider in each case whether the effect of the illness as
proved was such that in the circumstances it afforded a
reasonable excuse for the delay in presenting the petition.
It is perhaps well to observe that the affidavit in
support of an application to enlarge time must be detailed
as to let the Court see the nature of the reason and the
circumstances under which it arose. The cause and number
of days delay should be stated at the time of filing of the
appeal.
In the present case, the affidavit in support of
application to enlarge time is silent with regard to the
nature of the reason.
It is perhaps well to observe that the petitioner has
not even stated the number of days delay. The Court
exercised the discretion and refused to enlarge time.
It is needless to say that the test in such cases is
that has discretion been exercised after appreciation and
consideration of such facts as are relevant and after
application of the right principles to those facts. If
discretion is exercised under these conditions and a certain
conclusion is arrived at, that conclusion will be an exercise
of discretion judicially sound.
As could be seen from the narration of facts in the
petition, the petitioner is not diligent in prosecuting the
claim. There is a delay in all the cases. It is hardly
necessary to point out that the petitioner is unsuccessful in
getting an order of restoration also. Hence, I have no
hesitation in saying that the petitioner is not diligent in
prosecuting the claim.
Counsel for petitioner has cited number of cases, but
I do not think that the law is in doubt. Each decision turns
on its own facts. The present case is also tested in the light
of the aforesaid decisions.
On facts and in all the circumstances of the case, the
petition is devoid of merits.
7. In the result, I find no merit in this petition and
accordingly, it is dismissed.
Sd/-
JUDGE
VMB-1
