Karnataka High Court
The M.D., K.N.N.L vs Sri. Prakash Sangappa ... on 30 September, 2022
Bench: Ravi V.Hosmani
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RSA No. 100356 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO.100356 OF 2021
(COMPENSATION)
BETWEEN:
1. THE M.D., K.N.N.L.,
COFFEE BOARD,
BENGALURU.
2. THE EXECUTIVE ENGINEER,
H.B.C DIVISION,
R AND R ATHANI.
3. THE ASSISTANT EXECUTIVE ENGINEER,
P AND R ,SUB DIVISION,
ATHANI.
4. THE CHIEF ENGINEER,
NORTH IRRIGATION DIVISION,
CLUB ROAD, BELAGAVI.
5. THE SUPERINTENDENT ENGINEER,
GLBCV CIRCLE,
JAMAKHANDI.
...APPELLANTS
(BY SRI. RAJA RAGHAVENDRA V.NAIK, ADVOCATE)
AND:
1. SRI. PRAKASH SANGAPPA GHULAPPANAVAR,
AGE: 43 YEARS,
OCC: AGRICULTURE-COOLIE,
R/O. NADI-INAGALGAM,
TAL. ATHANI-591304.
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RSA No. 100356 of 2021
2. SMT.LAXMIBAI,
W/O PRAKASH GHULAPPANAVAR,
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NADI-INGALGAM,
TAL. ATHANI-591301.
3. KUMAR BASAVARAJ PRAKASH GHULAPPANAVAR,
AGE: 24 YEARS, OCC: STUDENT,
MINOR, REPT.BY MINOR GUARDIAN FATHER
RESPONDENT NO.1,
R/O. NADI-INGALGAM,
TAL. ATHANI-591304.
4. SHRI. V.A.DHARAV,
ENGINEER AND CLASS-I GOVT. CONTRACTOR,
AT. POST. GALATAGA,
TAL. CHIKODI,
DIST. BELAGAVI-591301.
5. GOVERNMENT OF KARNATAKA,
RESPONDENT BY D.C., BELAGAVI,
COURT CAMPUS,
BELAGAVI-590001.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF C.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER PASSED BY THE LEARNED ADDITIONAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
ATHANI IN O.S.NO.79/2008 DATED 03.07.2012 FURHTER TO
SET ASIDE THE ORDER PASSED BY THE LEARNED SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
ATHANI IN R.A.NO.60/2012 DATED 07.06.2016 IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED FOLLOWING:
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RSA No. 100356 of 2021
JUDGMENT
Heard learned counsel for appellants.
2. Challenging judgment and decree dated
07.06.2016 passed by Senior Civil Judge and
J.M.F.C., Athani (for short, "first appellate Court")
in R.A.no.60/2012 and judgment and decree dated
03.07.2012 passed by Additional Civil Judge and
Judicial Magistrate First Class, Athani (for short,
"trial Court") in O.S. no.79/2008, this appeal is
filed.
3. Appellants herein were defendants no.2
to 6 in suit, while respondents no.1 to 3 herein
were plaintiffs no.1 to 3, respondent no.4 herein
was defendant no.7 and respondent no.5 herein
was defendant no.1 in suit. For sake of
convenience, they shall hereinafter be referred to
by their rank in original suit.
RSA No. 100356 of 2021
4. There is a delay of 1287 days in filing
appeal. Hence, I.A.no.1/2021 is filed for
condonation.
5. In affidavit filed in support of application,
it is stated that after service of suit summons,
panel advocate engaged by appellant-Neeravari
Nigam did not appear in case due to lack of
instructions and did not file written statement. It
is stated that appellant was not informed about
disposal of suit and only when it received warrant
for attachment of movables from Executing Court,
it realized about disposal of suit and took steps for
filing first appeal.
6. There was a delay of two months and
seventeen days in filing first appeal. I.A.no.1 was
filed for its condonation. However appellate Court
by holding that no satisfactory explanation was
available, rejected application and consequently
RSA No. 100356 of 2021
dismissed appeal. Challenging same, this second
appeal is filed.
7. It is stated that though counsel appearing
for appellants before first appellate Court
forwarded judgment and award along with opinion,
Chief Administrative Officer referred it to legal
consultant who opined for preferring appeal.
However since there were insufficient papers, same
were secured and appeal is filed. In the process
delay accrued. It is stated that delay is not
deliberate nor intentional.
8. Learned counsel for appellants fervently
submitted that appellant is a Government
Institution and delay caused due to administrative
approvals is inbuilt and therefore seeks for
condonation.
9. On perusal of affidavit filed in support of
application, it is seen that assertion made by
RSA No. 100356 of 2021
appellants that counsel engaged by it did not file
written statement would be uncharitable.
Appellant-Corporation appoints Litigation
Conducting Officer for every litigation and assigns
responsibility to follow up with counsel. In case of
difficulty or non-co-operation, it was always
available for them to seek change of counsel.
Having not done so, it does not lie in mouth of
Corporation to make insinuation against counsel.
Suit was pending before trial Court from
14.01.2008 till 03.07.2012. It would be highly
negligent on part of Litigation Conducting Officer,
who did not verify about stage of proceedings and
take appropriate steps for protecting interests of
Nigam. Suit was disposed off on 03.07.2012.
Though it is stated that upon receipt of warrant
from Executing Court, appellant-Corporation took
steps for filing appeal, perusal of observations of
appellate Court in para-4 would indicate callous
RSA No. 100356 of 2021
attitude of officers of Nigam. Even after filing
appeal, it stated that there was no evidence led to
substantiate reasons for delay and counsel did not
address arguments.
10. Hon'ble Supreme Court in Thakur
Sukhpal Singh vs. Thakur Kaylan Singh and
Another , reported in AIR 1963 SC 146 , has held
that grounds pleaded in Memorandum of Appeal
are not sufficient; it is for appellant to address
arguments. Since counsel did not address
arguments, in instant case, first appellate Court
proceeded to consider application for condonation
of delay and on not finding sufficient cause
rejected same. Though normally delay of two
months and seventeen days would not be
substantial, it has to be considered in light of
negligent attitude of appellant-Corporation,
wherein rejection of application by first appellate
Court in facts and circumstances of this case does
RSA No. 100356 of 2021
not appear unjustified. Even after disposal of first
appeal on 07.06.2016, this appeal is filed only on
29.06.2021. Affidavit filed for condonation of delay
does not give dates on which certified copy of
impugned judgment and decree on which date it
was referred for opinion and on which date it
received opinion of legal consultant in short the
particulars about manner in which time was spent
before appeal could be filed. Vague pleadings and
assigning cause for obtaining approval for Court
fee would substantiate lack of diligence on part of
appellant-Corporation.
11. Apart from above in order to satisfy my
conscience, I have also perused judgment and
decree passed by trial Court. Suit was filed seeking
for damages on account of death of nine year old
boy, who died by falling into a pit dug for
construction of bridge, which work was entrusted
to defendant no.7. Trial Court after taking note of
RSA No. 100356 of 2021
unnatural death report recorded by Athani Police
Station and fact that pit dug did not leave much
way for public to pass and after giving specific
finding about breach of safety code, held
defendants liable to compensate plaintiffs and
assessed total compensation at Rs.2,50,000/-.
Trial Court held defendants no.1 to 7 jointly and
severally liable to pay same with interest at 18%
per annum from date of petition till realization.
12. Considering fact that lack of safety
measures by appellants led to death of nine year
old boy, assessment by trial Court, in any case,
does not appear exorbitant or excessive.
13. In the result, I do not find any sufficient
cause for condoning delay. Hence, I.A.no.1/2021 is
dismissed. Consequently, appeal and
I.A.no.2/2021 are also dismissed.
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RSA No. 100356 of 2021
14. It is seen that appellant-Corporation has
not been diligent in prosecuting its litigation.
15. Since it is observed that there was
negligence on part of Litigation Conducting
Officers, appellant-Corporation is directed to hold
enquiry and fix responsibility upon official who is
negligent officer and at liberty to recover loss from
such officer.
SD
JUDGE
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