Dada Balu Rooge vs Appasaheb Kiran Keste
2022 Latest Caselaw 7955 Kant

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                                                             RFA No. 100033 of 2021


                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 2ND DAY OF JUNE, 2022

                                                  BEFORE
                                 THE HON'BLE MR JUSTICE E.S.INDIRESH
                             REGULAR FIRST APPEAL NO. 100033 OF 2021 (SP-)
                      BETWEEN:

                      1.    DADA BALU ROOGE
                            AGE. 55 YEARS,
                            OCCUPATION. AGRICULTURE,
                            R/O. BHOJ, TQ. CHIKODI,
                            DIST. BELAGAVI, PIN NO 591201.

                      2.    VASUNDARA DADA ROOGE
                            AGE. 56 YEARS,
                            OCCUPATION. HOUSE HOLD,
                            R/O. BHOJ, TQ. CHIKODI,
                            DIST. BELAGAVI, PIN NO.591201.
                                                                    ...APPELLANTS
                      (BY MS. SURABHI KULKARNI, ADVOCATE)

                      AND:

                      1.    APPASAHEB KIRAN KESTE
                            AGE. 50 YEARS,
                            OCCUPATION. AGRICULTURE,
SHIVAKUMAR
HIREMATH                    R/O. BHOJ, TQ. CHIKODI,
Digitally signed by
SHIVAKUMAR
                            DIST. BELAGAVI,
HIREMATH
Date: 2022.06.03
03:07:33 -0700
                            PIN NO.591201.

                      2.    SURESH NEMGOUDA PATIL
                            AGE. 60 YEARS,
                            OCCUPATION. AGRICULTURE AND MONEY LENDING,
                            R/O. BHOJ, TQ. CHIKODI,
                            DIST. BELAGAVI PIN 591201
                                                                  ...RESPONDENTS
                      (BY SRI. ARUN P. BALOJI, ADVOCATE)

                                                     ---
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                                          RFA No. 100033 of 2021


     THIS RFA IS FILED UNDER SEC. 96 (1) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DTD 26.06.2013
PASSED IN O.S.NO.65/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE, CHIKODI, DECREEING THE SUIT FILED FOR
SPECIFIC PERFORMANCE OF CONTRACT.
     THIS APPEAL COMING ON FOR FURTHER ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

This appeal is filed by the defendants challenging the

judgment and decree dated 26.06.2013 passed in O.S.No.65/2010

on the file of the Senior Civil Judge, Chikodi, decreeing the suit of

the plaintiffs.

2. The appellant has filed I.A.1/2021 under Section 5 of

the Limitation Act, seeking condonation of delay of 2667 days in

filing the appeal.

3. The relevant facts for adjudication of this appeal are

that, plaintiffs have filed a suit for specific performance of the

agreement dated 29.03.2008 and the said agreement is registered

before the Sub-Registrar, Sadalaga. It is the case of the plaintiffs

that the defendants have agreed to sell the suit schedule

properties, however, failed to perform their duty as per the

agreement dated 29.03.2008 and as such, plaintiffs have filed

RFA No. 100033 of 2021

O.S.No.65/2010 on the file of the Senior Civil Judge, Chikkodi,

seeking the relief of specific performance of contract. Defendants

entered appearance, however, have not chosen to file written

statement and to contest the matter on merits. Plaintiffs have

examined two witnesses as PWs.1 and 2 and produced 7

documents and the same were marked as Exs. P1 to P7.

Defendants did not adduce any evidence. The trial Court, after

considering the material on record, by its judgment and decree

dated 26.06.2013, decreed the suit and as such, directed

defendants to execute the registered sale deed in favour of

plaintiffs in respect of the suit schedule properties by receiving the

balance sale consideration amount. Feeling aggrieved by the

same, defendants have presented this appeal.

4. Undisputably, there is a delay of 2667 days in filing the

appeal. I.A.1/2021 is filed seeking condonation of delay in filing the

appeal. The respondents entered appearance and filed detailed

objections to application I.A.1/2021.

5. Heard Ms.Surabhi Kulkarni, learned counsel appearing

for the appellants and Sri. Arun P. Baloji, learned counsel

appearing for the respondents.

RFA No. 100033 of 2021

6. Ms. Surabhi Kulkarni, learned counsel appearing for

the appellants contended that the defendants came to know about

the disposal of the suit on 26.06.2013 only after receiving the

notice in Execution petition No.73/2017. She further contended

that the appellants herein have filed Misc. Petition No.60/2014

before the trial Court to set aside the ex-parte judgment and decree

and the said petition was dismissed for non-prosecution on

09.08.2017. She further contended that an opportunity be given to

the defendants to contest the suit on merits as the defendants have

got a good case on merits.

7. Per contra, Sri. Arun P. Baloji, learned counsel

appearing for the respondents vehemently contended that though

defendants entered appearance, however, have not contested the

matter and the Misc. Petition No.60/2014 also came to be

dismissed for non-prosecution. Therefore, he contended that the

reasons assigned by the appellants herein are not bona fide in

nature and same cannot be accepted.

8. In the light of the submissions made by the learned

counsel appearing for the parties, I have carefully perused the

impugned judgment and decree.

RFA No. 100033 of 2021

9. As could be seen from the impugned judgment and

decree, before the trial Court the defendants entered appearance

and paragraph 4 of the judgment and decree would indicate that

the trial Court has given sufficient time to defendants to contest the

case on merits. Undisputably the suit is of the year 2010. The

plaintiff sought to execute the agreement of sale dated 29.03.2008.

I have also carefully examined the reasons assigned by the

defendants in I.A.1/2021, wherein it is stated that there was no

communication from the advocate on record to the defendants.

Taking into consideration the fact that there is delay of more than 8

years in filing the appeal, I am of the considered view that, in the

event if the said application is allowed, more hardship would be

caused to the respondents/plaintiffs.

10. It is the duty of the deponent to prove that he was

diligent and to provide sufficient grounds to condone the delay

howsoever may be larger. It is well established principle of law that

it is not the length of delay, but the cause of delay has to be looked

into. The Hon'ble Apex Court in the case of State of Nagaland Vs.

Lipok and Others, reported in (2005) 3 SCC 752, following the law

declared by the Privy Council, has held that, whenever there is

RFA No. 100033 of 2021

inordinate delay in filing the petition/appeal, the cause for delay has

to be explained.

11. In the instant case, undoubtedly, the appellants herein

have filed Misc.Petition No.60/2014 to set aside the judgment and

decree impugned in this appeal. However, the said case to be

dismissed for non-prosecution on 09.08.2017 and the said aspect

has not been countered by the learned counsel appearing for the

appellants. In that view of the mater, the appellants herein have

not shown any diligence in pursuing the matter before the trial

Court. Accordingly, I find substance in the arguments advanced by

the learned counsel appearing for the respondents. For the

aforestated reasons, I.A.1/2021 is dismissed. Consequently, the

appeal dismissed.

Sd/-

JUDGE

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