Karnataka High Court
Sri T S Siddalingaiah Since ... vs Sri T K Manjunath on 6 July, 2023
Bench: Jyoti Mulimani
-1-
NC: 2023:KHC:23271
RSA No. 1320 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1320 OF 2022 (SP)
BETWEEN:
SRI.T.S.SIDDALINGAIAH,
SINCE DECEASED REPRESENTED
BY HIS LRS
1. SMT.T.H.LAKSHMIDEVAMMA
AGED ABOUT 71 YEARS,
W/O LATE T.SIDDALINGAIAH,
2. SRI T.S.SIDDARAJU
S/O LATE T S.SIDDALINGAIAH,
AGED ABOUT 48 YEARS,
BOTH 1 & 2 ARE TOGETHER
Digitally signed by
R/A NO.G-842,
THEJASKUMAR N 3RD MAIN, 9TH CROSS,
Location: HIGH HAL CENTER TOWN,
COURT OF
KARNATAKA MARUTHAHALLI POST,
BENGALURU - 560 037.
3. SMT. T.S.SHIVAMMA
D/O LATE T.S.SIDDALINGAIAH,
AGED ABOUT 49 YEARS,
C/O NAGARAJU (DRAMA MASTER),
NO.493/1, O.T. ROAD
NEAR VIDYANIKETHANA SCHOOL,
VISHWANEEDAM POST,
SUNKADAKATTE,
BENGALURU - 560 091.
-2-
NC: 2023:KHC:23271
RSA No. 1320 of 2022
4. SMT. LALITHA
D/O LATE T.S.SIDDALINGAIAH,
AGED ABOUT 42 YEARS,
R/O NO.1402,
9TH MAIN, 9TH CROSS,
SHIVAJINAGARA,
BENGALURU - 560 001.
...APPELLANTS
(BY SRI. CHANNABASAPPA.S.N., ADVOCATE)
AND:
SRI T.K.MANJUNATH
S/O T.S.KEMPAIAH,
AGED ABOUT 56 YEARS,
R/O TAVAREKERE VILLAGE,
TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK - 560 037.
...RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Sri.Channabasappa.S.N., learned counsel for appellants
has appeared in person.
2. The captioned appeal is listed today for admission
along with an interlocutory application i.e., I.A.No.1/2022 for
condonation of a delay of 1807 days in filing the appeal.
NC: 2023:KHC:23271
RSA No. 1320 of 2022
3. Sri.Channabasappa.S.N., learned counsel for the
appellants submits that there is a delay of 1807 days in filing
the second appeal. Sri.T.S.Siddaraju - the second appellant has
sworn to an affidavit explaining the sufficiency of reason to
condone the delay. Learned counsel submits that the delay
caused in filing the appeal is neither wanton nor with any
malafide intention. If the delay is not condoned, the appellants
will be put to hardship. Hence, he submits that the delay of
1807 days in filing the appeal may be condoned.
4. Heard, the contentions urged on behalf of the
appellants on condonation of delay and perused the appeal
papers, application and also the affidavit filed in support of
I.A.No.1/2022 with utmost care.
5. Let us quickly glance through the law of limitation.
The principle enunciated under Section 5 of the Limitation
Act is that a Court is vested with judicial discretion to admit an
appeal, or an application filed after the expiry of the period of
limitation on sufficient cause being shown for the delay.
It must be remembered that the Court has full discretion
to refuse an extension of time, but this discretion, like other
NC: 2023:KHC:23271
RSA No. 1320 of 2022
judicial discretions, must be exercised with vigilance and
circumspection according to justice, common sense, and sound
judgment. It must not be exercised in an arbitrary, vague, and
fanciful manner. Delay cannot be condoned as a matter of
"judicial generosity". Condonation of delay cannot be claimed
as of right.
Having regard to the words "may be admitted "in Section
5, the Court has discretion, even where sufficient cause is
shown, in not admitting an appeal filed after time, on the
ground that the extension of time under that Section is a
matter of concession or indulgence to the appellant/petitioner
who has come late and cannot be claimed as of right.
The proof of "sufficient cause" is a condition precedent for
the exercise of the discretionary jurisdiction vested in the
Court. What counts is not the length of the delay but the
sufficiency of the cause.
The Court should not come to the aid of a party where
there has been an unwarrantable delay in seeking the statutory
remedy. Any remedy must be sought with reasonable
promptitude having regard to the circumstances.
NC: 2023:KHC:23271
RSA No. 1320 of 2022
No doubt there are authorities to say that the words
"sufficient cause" should receive a liberal construction to
advance substantial justice. What is sufficient cause cannot be
described with certainty because facts on which questions may
arise may not be identical. What may be sufficient cause in one
case may be otherwise in another. Hence the whole thing
should be decided with reference to the circumstances of each
case. Each case must be decided on its own facts. But it must
not be lost of sight that the petitioner/ appellant will have to
prove that he was diligent. Further, he will have to explain day-
to-day delay from the last day of limitation.
6. Reverting to the facts of the case, the suit giving
rise to this appeal was brought by the plaintiff seeking the relief
of a specific performance. The suit is filed on the file of Principal
Civil Judge (Sr.Dn), Ramanagara in O.S.No.269/2006. The Trial
Court vide Judgment and Decree dated:05.07.2008 decreed the
suit. Aggrieved by the Judgment & Decree of the Trial Court,
the legal representatives of deceased original defendant
preferred an appeal in R.A.No.63/2008 on the file of Principal
District and Sessions Judge, Ramanagara. On appeal, the First
Appellate Court vide Judgment & Decree dated:21.07.2015
NC: 2023:KHC:23271
RSA No. 1320 of 2022
confirmed the Judgment & Decree of the Trial Court and
dismissed the appeal. Aggrieved by the Judgment and Decree
of the First Appellate Court, the appellants have preferred this
Regular Second Appeal under Section 100 of CPC on
14.09.2022. There is a delay of 1807 days in filing the appeal.
7. I have perused the application I.A.No.1/2022 and
also the affidavit. Sri.T.S.Siddaraju - the second appellant has
sworn to the affidavit. In the affidavit, it is stated that the
appellants were not aware of the sale agreement executed by
their late father Siddalingaiah in favor of respondent. It is also
stated that the decree was granted in favor of appellants by
allotting 1/4th share each in the schedule property. An attempt
was made by the appellants to implead themselves in the
Original Suit filed by the respondent herein and the same was
denied by Trial Court. The legal heirs of deceased Siddalingaiah
preferred an Appeal before the First Appellate Court.
It is also stated that they were given an understanding by
the counsel on record before the Trial Court that they cannot
challenge the dismissal of the suit until and unless the property
in question is transferred to the name of the respondent. It was
NC: 2023:KHC:23271
RSA No. 1320 of 2022
also informed that they can only prefer an appeal only after the
sale deed is executed in favor of the respondent. Blindly
believing the said aspect, the appeal was not preferred.
A careful perusal of the affidavit reveals that the
appellants were prevented from filing an appeal in time by their
counsel who represented them before the Trial Court on the
pretext that unless and until a sale deed is executed in favour
of the respondent, they cannot prefer an appeal. It is hard to
believe the said explanation to condone the delay.
As already noted above, the Court has full discretion to
refuse an extension of time. The reasons accorded in the
affidavit and the submission made on behalf of the appellants
regarding delay in filing the appeal are not satisfactory and
hence this Court exercises the discretionary power and refuses
an extension of time. I decline to condone the delay and admit
the second appeal. Accordingly, I.A.No.1/2022 is rejected.
8. Resultantly, the Regular Second Appeal is
dismissed.
NC: 2023:KHC:23271
RSA No. 1320 of 2022
9. In view of the dismissal of Regular Second Appeal,
all pending interlocutory applications are disposed of as does
not survive for consideration.
Sd/-
JUDGE
TKN
