Karnataka High Court

Trimbak S/O Khandappa Belle vs Karnataka State Board Of Wakf And ... on 3 March, 2022

Bench: Ashok S. Kinagi

                              1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                  RSA No.200277/2019

Between:

Trimbak S/o Khandappa Belle,
Age: 60 years, Occ: Agriculture,
R/o Shiroor (G) Tq: Aland,
Dist: Kalaburagi.
                                       ... Appellant

(By Sri Vinayak Apte, Advocate)


And:

1.     Karnataka State Board of Wakf
       Through the Chief
       Executive Officer,
       Damul Awakaf No.6,
       Cunningham road,
       Bengaluru-52.

2.     Kareem S/o Avadhoot Mulla,
       Age: Major, Occ: Agriculture,
       R/o Shiroor (G), Tq: Aland,
       Dist: Kalaburagi-585 302.

3.     Gulam S/o Abdulla,
       Age: Major, Occ: Agriculture,
                                 2




      R/o Shiroor (G), Tq: Aland,
      Dist: Kalaburagi-585 302.


4.    Jeelani S/o Imam Sab Mulla,
      Age: Major, Occ: Agriculture,
      R/o Shiroor (G), Tq: Aland,
      Dist: Kalaburagi-585 302.

5.    Mohammad
      S/o Imam Sab Mulla,
      Age: Major, Occ: Agriculture,
      R/o Shiroor (G), Tq: Aland,
      Dist: Kalaburagi-585 302.
                                            ... Respondents

(By Sri Veeranagouda Malipatil, Advocate for
 Sri P.S.Malipatil, Advocate for R1;
 Sri A.M.Biradar, Advocate for R2 to R5)


      This Regular Second Appeal is filed under Section
100 of Code of Civil Procedure, praying to allow this appeal
and   to   set   aside   the   judgment   and   decree   dated
08.03.2016 passed in R.A.No.167/2010 by III-Additional
District Judge at Kalaburagi in confirming the judgment
and decree dated 18.02.2010 passed in O.S.No.64/2007
by the Civil Judge (Sr., Dn.,) at Aland in the interest of
justice and to grant any other remedy in the facts and
circumstances of the case.


      This appeal coming on for Orders, this day, the Court
delivered the following:-
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                       JUDGMENT

The appellant being aggrieved by the judgment

and decree dated 18.02.2010 passed in

O.S.No.64/2007 by the Civil Judge (Senior Division),

Aland, which is confirmed by the judgment and decree

dated 08.03.2016 passed in R.A.No.167/2010 by III-

Additional District Judge, Kalaburagi, has filed this

appeal.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff has filed a suit for declaration and

injunction in respect of the agricultural land. In the

said suit, the defendants appeared and filed written

statement denying the averments made in the plaint.

The Trial Court after full fledged enquiry dismissed the

suit of the plaintiff with regard to relief of declaration.

The plaintiff aggrieved by the judgment and decree

passed by the Trial Court preferred appeal in

R.A.No.167/2010. The First Appellate Court dismissed

the appeal confirming the judgment and decree

passed by the Trial Court. Hence, this second appeal

is filed.

4. Plaintiff has filed the second appeal with

delay of 1172 days. Hence, plaintiff has filed an

application in I.A.No.1/2019 along with the appeal

seeking condonation of delay of 1172 days in fling the

appeal. In the affidavit filed in support of the

application, plaintiff has contended that during the

year 2016 there was draught which compelled the

plaintiff to migrate to Pune in search of livelihood

along with his whole family and he could not spare

one day without work. He has also stated that his

Advocate did not know his Pune address so as to

communicate him about the dismissal of the appeal.

Plaintiff due to old age frequently suffered from other

body ailments which completely made him immobile

and prevented him from going outside and he was

totally dependent on his wife who served as maid

servant in different persons houses to look after him

and herself. He several times requested his son who

lives in Mumbai and works as auto driver to meet his

advocate but his son did not turn up. Thus, there is

delay in filing the appeal. On these grounds, he

prayed to condone the delay.

5. Heard the learned counsel for the

appellant/plaintiff.

6. Learned counsel for the plaintiff submits

that the plaintiff is aged person and is suffering from

ailments and further he was migrated to Pune for his

livelihood and he was unable to come out of his house

to provide instructions to his counsel and thus, there

is delay in filing the appeal. He further submits that

the Court must consider the application for

condonation of delay liberally and prays to condone

the delay.

7. Perused the records and considered the

submissions of the learned counsel for the

appellant/plaintiff. From perusal of the cause-title in

the memorandum of appeal, it is clear that plaintiff is

aged about 60 years, but in fact in the affidavit filed

by the plaintiff nowhere mentioned the age of the

plaintiff. Further, in support of his contention, the

plaintiff has not produced any medical records.

8. Thus, there is inordinate delay on the part

of the appellant in approaching this Court. The

appellant has not explained the delay satisfactorily.

Thus, doctrine of delay and laches should not be

lightly brushed aside. The Court should bear in mind

that while exercising jurisdiction, it has the duty

to protect the right of the citizen, but simultaneously

it has to keep itself alive to the primary principle that

when an aggrieved person without reason approaches

the Court at their own leisure or pleasure, the Court

would be under legal obligation to scrutinize whether

the lis at a belated stage should be entertained or not.

It may be noted that delay comes in the way of

equity. In certain circumstances delay and laches

may not be fatal but in most circumstances inordinate

delay would only invite disaster for the litigant who

knocks at the doors of the Court. Delay reflects

inactivity and inaction on the part of a litigant - a

litigant who has forgotten the basic norms, namely,

"procrastination is the greatest thief of time" and

second, law does not permit one to sleep and rise like

a phoenix. Delay does bring in hazard and causes

injury to the lis. A Court is not expected to give

indulgence to such indolent persons - who compete

with 'Kumbhakarna' or for that matter 'Rip Van

Winkle'. Thus, there is delay in filing the appeal.

Such inordinate delay of 1172 days in filing second

appeal does not deserve any indulgence. Hence, on

the ground delay and laches, the appeal is liable to be

dismissed at the very threshold. The Hon'ble Apex

Court in the case of Chennai Metropolitan Water

Supply and Sewerage Board and others vs.

T.T.Murali Babu reported in 2014(4) SCC 108,

declined to condone the delay of four years in

approaching the Court. The Hon'ble Apex Court in the

case of Majji Sannemma @ Sanyasirao vs. Reddy

Sridevi & Ors., in Civil Appeal No.7696/2021

disposed of on 16.12.2021 relying on the judgment

of the said Court in the case of Basavaraj and

another vs. Special Land Acquisition Officer

reported in (2013)14 SCC 81 has observed as

under:

"The expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party."

It is further observed that,

"Even though limitation may harshly affect the rights of a party but it has to be applied with all its rigour when prescribed by statute."

It is further observed that,-

"In case a party has acted with negligence, lack of bonaf ides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions."

It is observed that,

"Each application for condonation of delay has to be decided within the framework laid down by this Court".

It is further observed that,

"If Courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to the legislature."

The Hon'ble Apex Court has declined to condone

the delay of 1011 days in preferring the second

appeal. Further, the Hon'ble Apex Court in the case of

Lingeswaran Etc. vs. Thirunagalingam in Special

Leave to Appeal (C) Nos.2054-2055/2022

disposed of on 25.02.2022, held that when it is

found that the delay is not properly explained, the

application to condone the delay is required to be

dismissed. The Hon'ble Apex Court declined to

condone the delay of 465 days.

9. Considering the law declared by the

Hon'ble Apex Court in the above cases, the plaintiff