Karnataka High Court
Ratan Laxmansa Kabadi vs Sri.Anant Narayanrao Teragundi on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100506 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100506 OF 2019 (DEC/INJ)
BETWEEN:
RATAN LAXMANSA KABADI
S/O. LATE LAXMANSA KABADI,
AGED AOBUT: 59 YEARS,
OCC: BUSINESS AND AGRI.,
R/O: GUAMABA DEVELOPERS,
NARAYANPUR, DHARWAD-580001.
...APPELLANT
(BY SRI. ANKIT DESAI AND SRI. N.DINESH RAO, ADVOCATES)
AND:
1. SRI. ANANT NARAYANRAO TERAGUNDI
S/O. NARAYANRAO TERAGUNDI,
AGED ABOUT: 63 YEARS,
OCC: RETIRED ENGINEER,
R/O: NO.1098, ADARSHA LAYOUT,
Digitally
signed by K M
WEST OF CHORD ROAD,
KM
SOMASHEKAR
Location:
HIGH COURT
OF
IST BLOCK, III STAGE,
SOMASHEKAR KARNATAKA
DHARWAD
BENCH
Date:
2023.12.21
BENGALURU-560079.
12:00:23
+0530
2. SMT. USHA ALIAS LEELA
W/O. MADHAV NAIK,
AGED ABOUT: 58 YEARS,
OCC: HOUSEHOLD DUTIES,
R/O: NO.MIG.219, C/O. S.S. DESAI,
NAVANAGAR, HUBBALLI-580025.
3. SMT. LEELA W/O. MADHU NAIK
AGED ABOUT: 66 YEARS,
R/O: NO.44, MYSORE BANK COLONY,
FRAZER TOWN, BENGALURU-560005.
4. SMT. P. ANURADHA W/O. MADHAV NAIK
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RFA No. 100506 of 2019
AGED ABOUT: 52 YEARS,
R/O: 96/3, G1 STREET,
HAL IIIRD STAGE,
JEEVAN BHEEMA NAGAR,
BENGALURU-560008.
5. THE SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR,
D.C.COMPOUND, DHARWAD-580001.
SRI. SHESHAGIRI NARAYAN RAO TERAGUNDI
SINCE DECEASED BY LRS,
6. SMT. VAIJAYANTHIMALA
W/O. SHESHAGIRI TERAGUNDI,
AGED: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NO.338/5, III A MAIN ROAD,
A SECTOR, YELAHANAKA NEW TOWN,
BENGALURU-560064.
7. SMT. ARATI
W/O. PRADEEP NARASHIMHAMURTHY,
AGED: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: NO.338/5, III A MAIN ROAD,
A SECTOR, YELAHANAKA NEW TOWN,
BENGALURU-560064.
8. KUM. ROOPA
D/O. SHESHAGIRI TERAGUNDI
AGED: 32 YEARS,
OCC: HOUSE HOLD WORK,
R/O: NO.338/5, III A MAIN ROAD,
A SECTOR, YELAHANAKA NEW TOWN,
BENGALURU-560064.
9. ARAVIND
S/O. NARAYANRAO TERAGUNDI
AGED ABOUT: 56 YEARS,
OCC: BUSINESS.
R/O: NO.356, BEML LAY OUT,
BASAVESHWARANAGAR,
BENGALURU-560079.
10. NAGARAJ
S/O. NARAYANRAO TERAGUNDI
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RFA No. 100506 of 2019
AGED ABOUT: 54 YEARS,
OCC: DOCTOR,
R/O: NO.82, III CROSS,
GANGOTHRI LAY OUT,
MYSORE-570006.
11. SHRIKANT
S/O. NARAYANRAO TERAGUNDI
AGED ABOUT: 50 YEARS,
OCC: CENTRAL GOVERNMENT EMPLOYEE,
R/O: NO.2-1-434/1/B, STREET NO.4,
NALLAKUNTA, HYDERABAD-500044.
12. SMT. JAYASHREE W/O. RAMAMOHAN
AGED ABOUT: 51 YEARS,
OCC: CENTRAL GOVERNMENT EMPLOYEE,
C/O. SAI, NO.83, NETAJI SUBHAS
SOUTHERN CENTER QUARTER,
BENGALURU-560066.
13. SMT. PRATHIMA W/O. MANJUNATH TIWARI
AGED ABOUT: 58 YEARS,
OCC: NOT KNOWN,
R/O: NO.12;11-5, II CROSS,
KRISHNAYYA GARDEN,
COX TOWN, BENGALURU-560005.
...RESPONDENTS
(BY SRI.GURUDEV I. GACHCHINAMATH, ADV. FOR R1, 2, 6 TO 12;
SRI.V.S.KALASURMATH, HCGP FOR R5;
NOTICE TO R4 IS DISPENCED WITH V/O DATED 04.12.2023)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF
CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED
29.07.2016 PASSED IN O.S.NO.88/2008 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,
DHARWAD, BY PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
H.P. SANDESH, J., DELIVERED THE FOLLOWING:
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RFA No. 100506 of 2019
JUDGMENT
Heard the appellant's counsel and also the counsel
for the respondents.
2. I.A.No.1/2019 is filed seeking condonation of
delay of 1103 days. There is a delay of 1103 days in filing
the above appeal. In support of the application, an
affidavit is sworn to by the appellant stating that on the
advice of his counsel, he filed O.S.No.432/2009 on
22.07.2009 and the Court has granted an order of status-
quo. During 2014, since he was not getting any
information from the counsel, he engaged another counsel
after obtaining no-objection from the previous counsel.
The new counsel assured him that he would keep him
informed and that he will have to attend the court only
when it is posted for evidence. Initially every now and
then, the counsel used to inform the date of hearing to
him and he was under the bonafide impression that his
counsel would inform about the development of the suit.
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3. It is also further sworn to that during May-
2019, respondent No.1 initiated proceedings before the
Assistant Director of Land Records and in July-2019 he
was informed about the same by one of his friend who had
gone to the office of the ADLR and having learnt about the
proceedings initiated by respondent No.1, immediately on
11.07.2019, he filed objection before the ADLR stating
that the suit relating to subject land is pending
consideration before the Civil Court and as such the
authority should not proceed with the matter. However,
the clerk in the office of the ADLR informed him that the
suit has been decreed in favour of respondents No.1 and 2
way back in the year 2016. Shocked by the information,
he rushed to his counsel and counsel pleaded ignorance
and he gave evasive reply and later on he learnt that the
suit was dismissed for non-prosecution on 02.09.2016 and
the suit filed by respondents No.1 and 2 has been decreed
in their favour on 29.07.2016.
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4. It is also sworn to the affidavit that in the
meantime, he has received the notice on 22.08.2019 from
the office of the ADLR and thereafter he contacted another
counsel and got the application filed before the trial Court
and obtained the certified copy of the judgment and
decree and simultaneously on the advice of the counsel
filed further objection on 20.09.2019 before the ADLR.
Upon receipt of the certified copy of the judgment and
decree, he contacted the counsel and requested him to
prefer an appeal before this Court against the judgment
and decree. For the reasons stated in the affidavit
accompanying application, the delay has caused and the
delay is not intentional and the same is bonafide and he
was not informed by the counsel who was on record and
hence the delay may be condoned.
5. Counsel in support of his argument, relied upon
the judgment of the Apex Court reported in 2023 SCC
Online SC 1278 decided on 09.10.2023 and the counsel
referring to judgment would contend that it must be
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grasped that judiciary is respected not on account of its
power to legalise injustice on technical grounds but
because it is capable of removing injustice and is expected
to do so and when substantial justice and technical
considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other
side cannot claim to have vested right in injustice being
done because of a non-deliberate delay.
6. Referring to this judgment, he would contend
that substantial justice has to be done and not on
technicalities.
7. Per contra, learned counsel for the respondents
has filed statement of objections and contends that the
appellant has made a false statement before the Court and
has made a deliberate effort to mislead the Court. He has
urged before the Court as though he had no touch with the
advocate nor his advocate contacted him, therefore he
seeks for condonation of delay. Counsel would submit that
the suit is decreed on 29.07.2016 and on 21.11.2017 he
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has executed vakalath in RFA No.100383/2017 and he has
engaged the services of the very same advocate who was
appearing for him in the suit in O.S.No.88/2008 before the
trial Court. Further, he has also obtained bail in
Crl.Misc.No.260/2018 engaging the services of the very
same advocate and hence he was in touch with his
advocate on regular basis. The appellant has made a false
statement to this Hon'ble Court stating that his counsel did
not intimate him regarding the further progress and his
counsel has ignored him and also gave evasive replies are
all far from truth.
8. Counsel in support of his contention, produced
the copy of the vakalath dated 21.11.2017 which was
given in RFA No.100383/2017 and also the order passed in
Crl.Misc.No.260/2018 dated 10.05.2018 and contend that
the very averment made in the affidavit is far from truth
and he was having regular touch with the very same
counsel and hence the averment made in the affidavit is
not true.
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9. Counsel in support of his argument, relied upon
the judgment of the Hon'ble Apex Court in SLP(C)
No.15793/2019 decided on 31.01.2023 and brought to
notice of this Court para No.5, wherein it is observed that
the belated appeals can only be condoned when sufficient
reason is shown before the Court for the delay. The
appellant who seeks condonation of delay therefore must
explain the delay of each day. It is true that the Courts
should not be pedantic in their approach while condoning
the delay, and explanation of each day's delay should not
be taken literally, but the fact remains that there must be
a reasonable explanation for the delay. There was 254
days delay and the same was not condoned by the High
Court and the same was challenged before the Apex Court.
The order passed by the High Court not condoning the
delay of 254 days was affirmed by the Appellate Court.
10. He also brought to the notice of this Court para
No.10, wherein the Apex Court has taken note of Section 5
of the Limitation Act and also para No.21 of the judgment
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of Apex Court reported in (1977) 4 SCC 69, wherein the
matter is considered with regard to the delay is concerned.
11. Having heard both counsel and also on perusal
of the affidavit, it is stated that the advocate who was on
record did not inform the same and the fact remains that
the very same appellant engaged the counsel who was
representing before the trial Court in 2017 also even after
the dismissal of the present suit and also the appellant has
approached the very same advocate for obtaining the bail
order which has been annexed along with the statement of
objections.
12. When such objections are raised by the
respondents and very averment made by the appellant
that he was not having knowledge about the dismissal of
the suit cannot be accepted and he was in continuation
touch with the advocate who was on record before the trial
Court. No doubt, before this Court the appellant has
engaged a new counsel. The same cannot be a ground to
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comes to a conclusion that he was not intimated about the
progress of the suit.
13. There is a delay of 1103 days in filing the above
appeal and the reasons assigned in the affidavit in support
of the application are not satisfactorily explained and he
was in touch with the very same advocate and the very
averment in the affidavit falsifies the case of the appellant
with regard to the fact that he came to know about the
dismissal of the suit subsequently and the same cannot be
accepted.
14. Statement of objections fortifies the contention
of the respondents that the appellant was in touch with
the very same advocate and false averments are made in
the affidavit. When such being the case, the reasons
assigned in the affidavit cannot be accepted since there is
an inordinate delay. The Apex Court has also held that
pedantic approach cannot be made and at the same time
reason for delay of each day has to be explained and the
same has not been explained. Though averment is made
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with regard to the delay, the same is not acceptable and
the very ground urged is far from truth and hence we do
not find any ground to condone the delay of 1103 days in
filing the appeal.
15. Hence, I.A.No.1/2019 is rejected.
Consequently, the appeal is also dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SH
