Jayalakshmamma vs Ningegowda
2023 Latest Caselaw 3441 Kant

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                                                           NC: 2023:KHC:21046
                                                              RSA No. 1816 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 19TH DAY OF JUNE, 2023

                                                BEFORE

                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                         REGULAR SECOND APPEAL NO.1816 OF 2017 (INJ)

                      BETWEEN:

                      JAYALAKSHMAMMA
                      W/O SUBBEGOWDA,
                      AGED ABOUT 61 YEARS,
                      R/AT SEETHAPURA VILLAGE,
                      CHINAKURULI HOBLI,
                      PANDAVAPURA TALUK,
                      MANDYA DISTRICT - 571 434.
                                                                        ...APPELLANT
                      (BY SRI.SHRIKANTA SHARMA., ADVOCATE FOR
                           SRI.GIRISHA N.R., ADVOCATE)

                      AND:

                      NINGEGOWDA
                      S/O MADEGOWDA,
Digitally signed by   AGED ABOUT 78 YEARS,
THEJASKUMAR N
Location: HIGH
                      R/AT SEETHAPURA VILLAGE,
COURT OF              CHINAKURULI HOBLI,
KARNATAKA             PANDAVAPURA TALUK,
                      MANDYA DISTRICT - 571 434.
                                                                       ...RESPONDENT
                      (BY SRI. SRINIVAS V., ADVOCATE)

                             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 DELIVERED THE FOLLOWING:
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                                      NC: 2023:KHC:21046
                                         RSA No. 1816 of 2017




                             ORDER

Sri.Shrikanta Sharma., learned counsel on behalf of

Sri.Girisha.N.R., for the appellant and Sri.Srinivas.V., learned

counsel for the respondent have appeared in person.

2. The captioned appeal is listed today for admission

along with I.A.No.1/2017 for condonation of a delay of 275

days in filing the appeal.

3. Sri.Shrikanta Sharma., learned counsel for the

appellant submits that there is a delay of 275 days in filing the

second appeal. Smt.Jayalakshmamma - 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 275

days in filing the appeal may be condoned.

4. Sri.V.Srinivas., learned counsel for the respondent

vehemently objects to condone the delay.

NC: 2023:KHC:21046 RSA No. 1816 of 2017

5. Heard, the contentions urged on behalf of

respective parties about the condonation of delay and perused

the appeal papers with utmost care.

6. Let us quickly glance through the law of limitation.

7. 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.

8. 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.

9. 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

NC: 2023:KHC:21046 RSA No. 1816 of 2017

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.

10. 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.

11. 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.

12. 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

NC: 2023:KHC:21046 RSA No. 1816 of 2017

prove that he was diligent. Further, he will have to explain day-

to-day delay from the last day of limitation.

13. Reverting to the facts of the case, the suit giving

rise to this appeal was brought by the plaintiff seeking the relief

of a permanent injunction. The suit is filed on the file of Civil

Judge & J.M.F.C at Pandavapura in O.S.No.17/2004. The Trial

Court vide Judgment and Decree dated 28.07.2015 dismissed

the suit. Aggrieved by the Judgment & Decree of the Trial

Court, the plaintiff preferred an appeal in R.A.No.22/2015 on

the file of Addl.Senior Civil Judge & J.M.F.C at Pandavapura. On

appeal, the First Appellate Court vide Judgment & Decree dated

01.09.2016 confirmed the Judgment & Decree of the Trial Court

and dismissed the appeal. The plaintiff aggrieved by the

Judgment and Decree of the First Appellate Court, preferred

this appeal under Section 100 of CPC on 01.09.2017. There is a

delay of 275 days in filing the appeal.

14. I have perused the application I.A.No.1/2017 and

also the affidavit. Smt.Jayalakshmamma W/o.Subbegowda -

the appellant has sworn to a sworn statement. Except for

saying that she was suffering from ill-health and hence she

NC: 2023:KHC:21046 RSA No. 1816 of 2017

could not file the appeal in time, no sufficient reasons are given

to condone the delay. The appellant has not produced any

medical documents. As already noted above, the Court has full

discretion to refuse an extension of time. The reasons given 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.

15. Resultantly, the Regular Second Appeal is

dismissed.

16. 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