Karnataka High Court
Sri S B Anilkumar vs Sri Maggada Mane Devaraju on 11 July, 2023
Bench: Jyoti Mulimani
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RSA No. 1340 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 1340 OF 2017 (DEC/INJ)
BETWEEN:
SRI S.B.ANILKUMAR
S/O S.D.BRAHMARAJU,
AGED ABOUT 55 YEARS,
R/AT MYSORE ROAD,
SHRAVANABELAGOLA VILLAGE & HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 570 056.
...APPELLANT
(BY SRI. K.R.LINGARAJU., ADVOCATE)
AND:
SRI MAGGADA MANE DEVARAJU
S/O KUCHELASHETTY,
AGED ABOUT 50 YEARS,
Digitally signed by R/AT FILTERHOUSE CROSS,
THEJASKUMAR N
Location: HIGH HOLENARSIPURA ROAD,
COURT OF OPPOSITE SEEDS CORPORATION,
KARNATAKA
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 570 057.
...RESPONDENT
(BY SRI. SANTOSH B.M., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
Sri.K.R.Lingaraju., learned counsel for the appellant and
Sri.Santosh.B.M., learned counsel for respondent have
appeared in person.
2. The captioned appeal is listed today for admission
along with an interlocutory application i.e., I.A.No.1/2017 for
condonation of a delay of 203 days in filing the appeal.
3. Sri.K.R.Lingaraju., learned counsel for the appellant
submits that there is a delay of 203 days in filing the second
appeal. Sri.S.B.Anil Kumar - the 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 appellant will be put to hardship.
Hence, he submits that the delay of 203 days in filing the
appeal may be condoned.
4. Sri.Santosh.B.M., learned counsel for respondent
submits that he has filed statement of objections to
I.A.No.1/2017, the same may be taken note of and appropriate
order may be passed.
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5. Heard, the contentions urged on behalf of the
respective parties on condonation of delay and perused the
appeal papers, application, affidavit and also the statement of
objections filed by the respondent with utmost care.
6. 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
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
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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.
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
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prove that he was diligent. Further, he will have to explain day-
to-day delay from the last day of limitation.
7. Reverting to the facts of the case, the suit giving
rise to this appeal was brought by the plaintiff seeking the relief
of declaration and permanent injunction. The suit is filed on the
file of Principal Civil Judge and JMFC, Channarayapatna in
O.S.No.99/2009. The Trial Court vide Judgment and Decree
dated:28.01.2015 dismissed the suit. Aggrieved by the
Judgment & Decree of the Trial Court, the plaintiff preferred an
appeal in R.A.No.20/2015 on the file of Senior Civil Judge,
Channarayapatna. On appeal, the First Appellate Court vide
Judgment & Decree dated:02.08.2016 confirmed the Judgment
& Decree of the Trial Court and dismissed the appeal.
Aggrieved by the Judgment and Decree of the First Appellate
Court, the plaintiff has preferred this Regular Second Appeal
under Section 100 of CPC on 27.06.2017. There is a delay of
203 days in filing the appeal.
8. I have perused the application I.A.No.1/2017 and
also the affidavit. Sri.S.B.Anil Kumar - the appellant has sworn
to the affidavit. In the affidavit, it is stated that he was unwell
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and he was unable to contact the counsel before the First
Appellate Court and was taken treatment continuously for the
chicken guinea and severe joint pain. Hence, there is a delay in
filing the appeal and it took time for him to secure documents
and thereafter made preparations to file an appeal. I am unable
to accept the said contention for the simple reason that, except
for stating that the appellant was suffering from chicken-guinea
and sever joint pain, he has not produced any medical
documents to substantiate the same. Learned counsel for
respondent is justified in objecting 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 appellant
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.1/2017 is rejected.
9. Resultantly, the Regular Second Appeal is
dismissed.
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10. 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
