Karnataka High Court
Sri K N Rangaswamy vs Shri Aruna on 19 April, 2023
Bench: H.P.Sandesh
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RSA No. 2037 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2037 OF 2021 (PAR/INJ)
BETWEEN:
1. SRI K.N. RANGASWAMY
@ RANGEGOWDA,
S/O LATE NANJEGOWDA,
AGED ABOUT 52 YEARS.
2. SMT. PREMA,
W/O SRI K.N. RANGASWAMY,
AGED ABOUT 44 YEARS.
3. SRI K.R. PRASAD,
(CORRECT NAME IS SHRI DEEPAK R)
S/O SRI K.N. RANGASWAMY,
AGED ABOUT 26 YEARS.
ALL ARE RESIDING AT B. KATTAHALLI,
Digitally signed
by SHARANYA T ARSIKERE ROAD,
Location: HIGH OPP TO GRANITE FACTORY,
COURT OF HASSAN TOWN, HASSAN DISTRICT.
KARNATAKA
4. SRI ASHOK,
S/O LATE NANJEGOWDA,
AGED ABOUT 39 YEARS.
5. SMT. CHAITRA,
W/O ASHOK,
AGED ABOUT 35 YEARS.
6. KUM. BRUNDA,
D/O SRI ASHOK,
AGED ABOUT 10 YEARS,
SINCE MINOR BEING REPRESENTED BY
SRI ASHOK,
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RSA No. 2037 of 2021
4TH DEFENDANT HEREIN
BEING HER FATHER AND NATURAL GUARDIAN.
APPELLANT NOS.4 TO 6 ARE
RESIDING AT HOUSE BUILT IN SITE NO.1,
FORMED IN SY NO.49, 4TH MAIN,
ANJANADARI LAYOUT,
SANJEEVININAGAR,
VISHWANEEDAM POST,
BENGALURU-560 091.
AND ALSO AT:
M/S MARUTHI ELECTRICALS AND HARDWARES,
MARUTI COMPLEX, HEGGANAHALLI CROSS,
SANJEEVININAGAR, 1ST MAIN ROAD,
NEELAKANTESHWARA DEVASTHANAMA ROAD,
VISHWANEEDAM POST,
BENGALURU-560 091.
7. SRI SHIVA SHANKAR @ HANUMEGOWDA,
S/O LATE NANJEGOWDA,
AGED ABOUT 47 YEARS.
8. SMT. JAYAMMA,
W/O SRI SHIVASHANKAR @ HANUMEGOWDA,
AGED ABOUT 42 YEARS.
9. KUM. ANITHA,
D/O SRI SHIVASHANKAR @ HANUMANTHEGOWDA,
AGED ABOUT 19 YEARS.
10. MASTER K. SANTHOSH @ NAVEEN,
S/O SRI SHIVA SHANKAR
@ HANUMANTHE GOWDA,
AGED ABOUT 17 YEARS.
SINCE MINOR REPRESENTED BY
7TH DEFENDANT HEREIN
BEING THEIR FATHER AND NATURAL GUARDIAN.
APPELLANT NOS.7 TO 10 ARE
RESIDING AT C. HONNENAHALLI GRAMA
(VADDARAHATTI),
(M SHIVARA DAKALE),
BHALGATTA POST,
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RSA No. 2037 of 2021
BAGUR HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573111.
...APPELLANTS
(BY SRI PRAKASH T. HEBBAR, ADVOCATE)
AND:
1. SHRI ARUNA,
D/O LATE PADMA AND
SRI HANUMANTHE GOWDA @ CHANDRU,
AGED ABOUT 22 YEARS.
2. KUM. PUSHPA,
D/O LATE SMT. PADMA AND
SRI HANUMANTHE GOWDA @ CHANDRU,
AGED ABOUT 19 YEARS.
BOTH ARE RESIDING AT
C/O YELIYUR SRI JAGANATH,
SAMPIGE ROAD,
BEHIND MUNSIFF AND MAGISTRATE COURT,
CHANNARAYAPATNA TOWN,
CHANNARAYAPATNA,
HASSAN DISTRICT-573116.
3. SHRI K.T. GOVINDEGOWDA,
S/O LATE THIMMEGOWDA,
AGED ABOUT 68 YEARS,
R/AT NO.341, 16TH MAIN,
M.C. LAYOUT, VIJAYANAGAR.
BENGALURU-560 040.
...RESPONDENTS
(BY SRI AJESH KUMAR S. ADVOCATE FOR
SRI DILEEP C.G., ADVOCATE FOR C/R1 AND 2)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 04.08.2017
PASSED IN RA.NO.107/2014 ON THE FILE OF THE 4TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
DISTRICT, (SIT AT CHANNARAYAPATNA) ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
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RSA No. 2037 of 2021
DATED 26.04.2014 PASSED IN O.S.NO.40/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA
THIS APPEAL COMING ON FOR ADMMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard on I.A.No.1/2021 for condonation of delay of
872 days in filing the second appeal. In support of the
application, an affidavit is filed and in paragraph No.5 of
the affidavit while explaining the delay it is sworn to that
there is a delay in filing the second appeal. It is further
sworn to that on the dismissal of the plaintiffs' suit, plaintiff
No.3, who is a relative of plaintiff Nos.1 and 2, who is an
advocate, confided that he would coordinate with plaintiff
Nos.1 and 2 and their family members and also his family
members of an amicable settlement notwithstanding the
ultimate result in the above appeal and they believed that
his efforts would settle the statement, but the same could
not be succeeded. It is sworn to that plaintiff No.3 is also
a practicing advocate and also a close relative of both the
parties, made them to believe that he would settle the
matter. Believing the words of the said common friend and
relative and to have a quietus to the litigation, they could
RSA No. 2037 of 2021
not file the appeal in time. Meanwhile, the present
pandemic also added to the delay.
2. The learned counsel for the appellants in support
of his arguments relied upon the judgment of the Apex
Court in the case of COLLECTOR, LAND ACQUISITION,
ANANTNAG AND OTHERS v. KATIJI AND OTHERS
reported in MANU/SC/0460/1987 and brought to the
notice of this Court paragraph No.3 wherein discussed with
regard to the every day's delay must be explained does not
mean that a pedantic approach should be made. Why not
every hour's delay, every second's delay? The doctrine
must be applied in a rational common sense pragmatic
manner.
3. The learned counsel also relied upon the
judgment of the Apex Court in the case of N.
BALAKRISHNAN v. M. KRISHNAMURTHY reported in
MANU/SC/0573/1998 and brought to the notice of this
Court paragraph No.13 wherein the Apex Court discussed
with regard to delay is concerned that it must be
remembered that in every case of delay there can be some
RSA No. 2037 of 2021
lapse on the part of the litigant concerned. That alone is
not enough to turn down his plea and to shut the door
against him. If the explanation does not smack of
malafides or it is not put forth as part of a dilatory strategy
the Court must show utmost consideration to the suitor.
But when there is reasonable ground to think that the delay
was occasioned by the party deliberately to gain time then
the Court should lean against acceptance of the
explanation. While condoning the delay the Court should
not forget the opposite party altogether. It must be borne
in mind that he is a loser and he too would have incurred
quite a large litigation expenses. It would be a salutary
guideline that when Courts condone the delay due to laches
on the part of the applicant the Court shall compensate the
opposite party for his loss.
4. The learned counsel would contend that the
affidavit is very clear that one of the relative and also a
party to the suit, who is arraigned as plaintiff No.3 had
promised that he could coordinate with plaintiff Nos.1 and 2
and settle the issue between the parties and hence the
RSA No. 2037 of 2021
appellants have believed the words of plaintiff No.3, who is
a practicing advocate and a relative. Hence, they have not
filed the appeal within time and hence the same can be
compensated in terms of money.
5. Per contra, the learned counsel for respondent
Nos.1 and 2 in his argument would contend that the suit
summons was served on the appellants before the Trial
Court and inspite of service of notice, they did not appear
and contest the matter by filing the written statement and
they were placed exparte. The learned counsel submits
that in the appeal also they have not represented and
contested the matter and the First Appellate Court
considering the material and also the perversity in giving
the finding in dismissal of the suit reversed the finding by
assigning the reasons. When the appellants have not
contested the matter in both the suit and in the appeal,
now it is nothing but taking of a chance in the second
appeal by filing this appeal with inordinate delay. The
learned counsel would submit that actually there is a delay
of 1480 days, but excluding Covid period, it is mentioned
RSA No. 2037 of 2021
as 872 days. The learned counsel submits that the appeal
was allowed on 04.08.2017 and the second appeal is filed
on 24.08.2021 almost after four years of delay. No
satisfactory reasons are assigned for condoning the delay.
No details are given when plaintiff No.3 had approached
the appellants except mentioning that there was a promise
to get the matter settled between the parties. No sufficient
and satisfactory reasons are given by explaining the delay
and hence the Court cannot consider the same in a lenient
way while condoning the delay.
6. The learned counsel for respondent Nos.1 and 2
in support of his argument relied upon the judgment of the
Apex Court in the case of MAJJI SANNEMMA ALIAS
SANYASIRAO v. REDDY SRIDEVI AND OTHERS
reported in 2021 SCC Online SC 1260, wherein there was
a delay of 1011 days and the Apex Court discussed the
same reasoning given by the High Court in paragraph
No.14 and in paragraph No.15 with regard to condonation
of delay and reasons assigned in the application and in
paragraph No.17 discussed the judgments of the Madras
RSA No. 2037 of 2021
High Court and other judgments wherein discussed the
facts of each case. In paragraph No.20 it is observed that
condonation of delay has to be exercised judiciously based
on facts and circumstances of each case. It is further
observed that expressing "sufficient cause" cannot be
liberally interpreted if negligence, inaction or lack of
bonafides is attributed to the party. The learned counsel
brought to the notice of this Court that the Apex Court has
observed with regard to negligence on the part of the client
and when the party has acted with negligence, proper lack
of bonafides or there is inaction then there cannot be any
justified ground for condoning the delay even by imposing
the conditions. It is further observed that each application
for condonation of delay has to be decided within the
framework laid down by the Court. In paragraph No.21 it
is observed that the delay defeats equity. The Courts help
those who are vigilant and do not slumber over their rights.
Hence, not accepted the delay of 1011 days in preferring
the appeal.
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RSA No. 2037 of 2021
7. Having heard the learned counsel for the
appellants and the learned counsel for respondent Nos.1
and 2 and also taking note of the material available on
record, it is not in dispute that the appeal was allowed on
04.08.2017 and this appeal is filed on 24.08.2021 and
there is a delay of four years in filing the appeal. Covid
pandemic commenced in March 2020 and the appeal was
filed on 24.08.2021. In paragraph No.5 of the affidavit
filed in support of the application, it is stated that plaintiff
No.3 who is also a relative and advocate promised that he
would settle the matter with plaintiff Nos.1 and 2. In the
affidavit nowhere it is stated that when the suit was
pending, if any such promise was made. The fact is that
the notice was issued against the appellants before the
Trial Court and they have been served and they were
unrepresented and ultimately the suit was dismissed.
When the appeal was filed, no details of plaintiff No.3, who
is a practicing advocate and making promise has not been
stated with regard to the approach made to the appellants.
Only a bald reasoning is given that one of the plaintiff, who
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RSA No. 2037 of 2021
is a practicing advocate and relative made promise, but the
fact is that even in the appeal also the appellants have not
represented and not contested the matter. Even when the
suit was filed and notice is served on them, they did not
appear through the counsel and filed statement of
objections. It is rightly pointed out by the learned counsel
for respondent Nos.1 and 2 that it is nothing but a chance
taken in the second appeal by the appellants and no
sufficient reasons are given and each day delay has not
been explained by the appellants. No doubt, the Apex
Court in the judgment in the case of Katiji (supra) held
that every day's delay must be explained does not mean
that a pedantic approach should be made. The Apex Court
in the case of N. Balakrishnan (supra) observed that it
must be remembered that in every case of delay there can
be some lapse on the part of the litigant concerned. If the
explanation does not smack of malafides or it is not put
forth as part of a dilatory strategy the Court must show
utmost consideration to the suitor.
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RSA No. 2037 of 2021
8. The Apex Court in the case of Majji Sannemma
(supra) held that if any negligence on the part of the
parties and inaction for want of any bonafides, it is
imputable to the appellant. In the case on hand, no doubt
there was a delay of 872 days in filing the appeal excluding
the Covid period and the same has not been explained by
the appellants. There was a lethargic attitude and
negligence on the part of the appellants when the suit
summons was served on them and they did not appear and
contest the matter. In the appeal also they did not choose
to appear and contest the matter. It is nothing but an
inaction and also negligence on the part of the appellants
as observed by the Apex Court in Majji Sannemma's case
(supra). When such being the case, when the appellants
are not vigilant, the discretion cannot be exercised
arbitrarily and the same has to be exercised judiciously and
no sufficient cause is given by the appellants to condone
the delay. Hence, I do not find any force in the contention
of the learned counsel for the appellants to condone the
delay. This appeal is filed after four years of the judgment
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RSA No. 2037 of 2021
is pronounced in the regular appeal and I have already
pointed out that from the beginning in the suit and in the
Appellate Court, the appellants have not made any efforts
to engage a counsel or contest the matter and in the
second appeal they took the chance to contest the matter.
No sufficient grounds are given to condone the delay.
9. In view of the discussions made above, I pass
the following:
ORDER
I.A.No.1/2021 is rejected. In view of the rejection of
I.A.No.1/2021, the appeal is dismissed.
Sd/-
JUDGE
MD
