Karnataka High Court

Shri Anil S/O Bhaurao Karbhari vs Shri Rajeram S/O Bhaurao Karbhari on 9 March, 2022

Bench: Ashok S. Kinagi

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          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF MARCH, 2022

                           BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

            RSA No.200418/2019 (DEC/INJ)

BETWEEN:
Shri Anil S/o Bhaurao Karbhari,
Age: 52 Years, Occ: Agriculture,
R/o Ujalamb, Tq. Basavakalyan,
District: Bidar-585 41.
                                            ...Appellant
(By Santosh R. Belamagi, Advocate)

AND

1.     Shri Rajeram S/o Bhaurao Karbhari,
       Since deceased by his LRs.

1(a)   Jhumrabai W/o Rajeram Karbhari,
       Age: 55 Years, Occ: Household,
       R/o Ujalamb, Tq. Basavakalyan,
       District: Bidar-585 419.

1(b)   Vidya D/o Rajeram Karbhari,
       Age: 35 Years, Occ: Household,
       R/o Ujalamb, Tq. Basavakalyan,
       District: Bidar-585 419.

1(c)   Pinku D/o Rajeram Karbhari,
       Age: 32 Years, Occ: Household,
       R/o Ujalamb, Tq. Basavakalyan,
       District: Bidar-585 419.
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1(d)   Yogesh S/o Rajeram Karbhari,
       Age: 30 Years, Occ: Agriculture,
       R/o Ujalamb, Tq. Basavakalyan,
       District: Bidar-585 419.
                                                  .....Respondents

(By Sachin M.Mahajan, Advocate for R1(a) to R1(d))

      This RSA filed U/s 100 of the Code of Civil Procedure,
praying to set aside the judgment and decree passed by the
Senior Civil Judge and JMFC at Basavakalyan in R.A.No.06/2017
dated 06.02.2019 and the Judgment and Decree of the Trial
Court in O.S.No.21/2010 passed by the Civil Judge at
Basavakalyan dated 15.12.2012, and allow the suit of the
plaintiff in the interest of justice and equity.

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


                          JUDGMENT

This appeal is filed challenging the judgment and

decree dated 06.02.2019 passed in R.A.No.6/2017 by

the Senior Civil Judge & JMFC, Basavakalyan,

confirming the judgment and decree dated

15.12.2012 passed in O.S.No.21/2010 by the Civil

Judge, Basavakalyan.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is plaintiff and respondent is the defendant

before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for declaration, possession

and rectification of records and for perpetual

injunction. It is the case of the plaintiff that defendant

is the full brother of plaintiff and father died on

09.01.2010 leaving behind plaintiff, defendant and

their mother Tanu bai. Partition was effected in the

entire family properties, wherein in suit land

Sy.No.6/2 measuring 3 acres 20 gunts of Chandkapur

village, western half portion measuring 1 acre 30

guntas was fallen to share of plaintiff and eastern half

portion measuring 1 acre 30 guntas fallen to the share

of defendant. Accordingly, they are in respective

possession and enjoyment of their respective

properties. Mother of plaintiff and defendant and their

sisters have relinquished their joint share and interest

in the ancestral joint family properties. The defendant

is trying to interfere and obstructing into the lawful

possession and enjoyment of the plaintiff over the suit

property. Further the defendant denied the title of

plaintiff over the suit property. Hence, cause of action

arose for the plaintiff to file a suit for declaration and

possession, rectification and consequential reliefs.

3.1. Defendant filed written statement admitting

the relationship between the plaintiff and defendant

and denied half portion measuring 1 acre 30 guntas of

land was fallen to the share of plaintiff. It is contended

that the entire suit land was allotted to the share of

defendant and defendant is in possession of suit

schedule property. Hence, prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves that he is lawful owner of the suit property as on the date of filing of this suit?

2. Whether the plaintiff proves that defendant is trying to disturb his possession and denying his ownership over the suit property?

3. Whether the defendant proves that Court fee paid on the plaint is not proper?

4. Whether the plaintiff is entitle for the relief of declaration of possession and also for perpetual injunction as prayed for?

5. What order or decree?

3.3. In order to prove the case, plaintiff

examined himself as PW.1 and got marked documents

as Exs.P1 to P5. Defendant has not entered into

witness box. The Trial Court, after recording evidence

and considering the material on record, held that

plaintiff has failed to prove that he is lawful owner of

the suit property as on the date of filing of this suit

and further held that plaintiff has failed to prove that

defendant is trying to disturb his possession and

denying his ownership over the suit property and

further recorded a finding that plaintiff is not entitled

for the relief of declaration of possession and

consequently dismissed the suit.

3.4. The plaintiff aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.6/2017 along with appeal, the plaintiff has

filed an application under Section 5 of Limitation Act

to condone the delay of 1544 days in preferring the

appeal. In support of application, the plaintiff has

filed an affidavit stating that he has engaged

Sri.B.N.Patil, advocate, after his evidence, his counsel

informed him that he will intimate about the progress

of the suit later, as such he need not attend the Court

on each and every date of hearing. It is further

contended that plaintiff is poor agriculturist and

innocent, as such believed the words of the counsel

trusting upon him and he was waiting of information

from the counsel. In the last week of January 2017,

he came to know that Sri.B.N.Patil, advocate was no

more. Thereafter, he came to Basavakalyan and

verified about the suit, noticed about dismissal of the

suit. Thus, the delay is caused in filing the appeal. The

said application was opposed by the defendant by

filing objections. The Appellate Court after holding an

enquiry on an application for condonation of delay

dismissed the appeal. Hence, the plaintiff filed this

second appeal.

3.5. The First Appellate Court, after considering

the material on record has recorded a finding that

plaintiff has failed to show that there is a "sufficient

cause" for delay in filing appeal and dismissed the

appeal filed by the plaintiff.

4. Learned counsel for the plaintiff submits

that the plaintiff has engaged Sri.B.N.Patil, advocate.

The evidence of plaintiff is counsel informed that he

will intimate about the progress of the suit as such he

has not informed the progress of the suit. Hence, the

plaintiff was not aware about the disposal of the suit.

Hence, the said delay was caused in filing the appeal.

He submits that the Appellate Court has committed an

error in rejecting the application for condonation of

delay in filing the appeal. Hence, on these grounds he

prays to allow the appeal.

5. Heard and perused and considered the

submission of learned counsel for the parties.

6. The plaintiff has filed an application under

Section 5 of the Limitation Act to condone the delay of

1544 days in preferring the appeal on the ground that

he has engaged Sri.B.N.Pati, advocate. After recording

his evidence, his counsel informed that he will

intimate about the progress of the suit as such he has

not attended the Court on each dates of hearing. In

order to prove "sufficient cause" for delay in filing the

appeal, the plaintiff examined himself as PW.1,

wherein he reiterated the averments made in the

application for condonation of delay. In the course of

cross-examination, PW.1 has clearly admitted that he

met Sri.B.N.Patil, advocate during life time of said

counsel. The said counsel has expired in the year

2017 and suit came to be dismissed in the year 2012.

Further, if he met the counsel during his life time then

he would have disclosed to him about the disposal of

the case. Further, plaintiff did not meet his counsel

and he was negligent in conducting the case. Further

the plaintiff has clearly admitted in the course of

cross-examination that his counsel passed away in the

year 2017 and plaintiff has filed this appeal in the year

2019. Plaintiff has not shown any sufficient cause for

condoning the delay of 1544 days in filing appeal

before the Appellate Court.

7. In view of the above discussions, the

plaintiff has not shown sufficient cause for condoning

the delay of 1544 days in filing the appeal. The

plaintiff has filed the present appeal beyond the period

of limitation. Thus, there is inordinate delay in filing

appeal before the First Appellate Court. It is well

settled principle of law that delay defeats equity. From

perusal of the conduct of the plaintiff, the plaintiff is

negligent in conducting the case. Hence, on the

ground delay the appeal is liable to be dismissed at

the very threshold.

8. 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."

9. 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.

10. The appellate Court was justified in

rejecting an application for condonation of delay on