Smt. Rangathayamma vs Sri Manjanna @ Manjaiah
2023 Latest Caselaw 3543 Kant

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                                                          NC: 2023:KHC:21597
                                                             RSA No. 27 of 2021




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 21ST DAY OF JUNE, 2023

                                                BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                            REGULAR SECOND APPEAL NO.27 OF 2021 (PAR)
                      BETWEEN:

                      SMT. RANGATHAYAMMA
                      W/O THIPPERUDRAIAH,
                      D/O LATE CHIGAJAIAH,
                      AGED ABOUT 56 YEARS,
                      R/AT KORA VILLAGE,
                      TUMKUR TALUK - 572 101.
                                                                   ...APPELLANT
                      (BY SRI.BYRE GOWDA N., ADVOCATE)

                      AND:

                      1.    SRI MANJANNA @ MANJAIAH
                            S/O LATE CHIGAJAIAH
                            AGED ABOUT 49 YEARS

                      2.    SMT. LAKSHMAMMA
                            W/O RANGAPA,
Digitally signed by
THEJASKUMAR N               D/O LATE CHIGAJAIAH
Location: HIGH              AGED ABOUT 77 YEARS
COURT OF
KARNATAKA
                            BOTH ARE R/AT KORA VILLAGE,
                            TUMKUR - 572 101.
                                                                ...RESPONDENTS

                      (BY SRI.G.S.BALAGANGADHAR, ADVOCATE FOR R1;
                          R2 - SERVED)

                           THIS REGULAR SECOND APPEAL IS FILED UNDER
                      SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.

                           THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY,
                      THE COURT DELIVERED THE FOLLOWING:
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                                        NC: 2023:KHC:21597
                                               RSA No. 27 of 2021




                           JUDGMENT

Sri.Byre Gowda.N., learned counsel for the appellant and

Sri.G.S.Balagangadhar., learned counsel for respondent No.1

have appeared in person.

2. The captioned appeal is listed today for hearing -

Interlocutory application i.e., I.A.No.1/2021 for condonation of

delay.

3. Learned counsel Sri.Byre Gowda.N., for the

appellant submits that there is a delay of 1085 days in filing the

appeal. Counsel submits that the appellant

Smt.Rangathayamma has sworn to an affidavit narrating the

reasons to condone the delay. He submits that the reasons

given in the affidavit may be taken on record and delay of 1085

days in filing the appeal may be condoned.

4. Sri.G.S.Balagangadhar., learned counsel for

respondent No.1 strongly objects to condone the delay. Counsel

submits that a detailed statement of objections are filed and

the same may be taken on record and appropriate order may

be passed.

NC: 2023:KHC:21597 RSA No. 27 of 2021

5. Heard, the contentions urged on behalf of the

respective parties about the condonation of delay and perused

the appeal papers, application, the affidavit filed in support of

I.A.No.1/2021 and the statement of objections filed by learned

counsel for respondent No.1 to I.A.No.1/2021 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

NC: 2023:KHC:21597 RSA No. 27 of 2021

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.

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

NC: 2023:KHC:21597 RSA No. 27 of 2021

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.

7. Reverting to the facts of the case, the appellant is

the plaintiff before the Trial Court. She filed a suit for partition.

The Trial Court on 21.01.2016 decreed the suit. Aggrieved by

the Judgment & Decree of the Trial Court, the defendants

preferred an appeal before the First Appellate Court in

R.A.No.34/2016. The First Appellate Court on 04.01.2017

allowed the appeal and consequently, dismissed the suit.

Hence, this Regular Second Appeal is filed by plaintiff under

Section 100 of CPC on 21.12.2020.

8. I have perused the reasons given in the affidavit

accompanying the application for condonation of delay. The

appellant Smt.Rangathayamma has sworn to an affidavit and

she has stated that the First Appellate Court disposed of the

appeal on 04.01.2017 and the certified copy was applied on

04.12.2020 and the same was delivered on 10.12.2020. Hence,

there is a delay of 1085 days in filing the present appeal.

9. In the affidavit, she has made statement as under:

NC: 2023:KHC:21597 RSA No. 27 of 2021

(a) She is residing at the village where the suit properties are situated.

(b) She is aged 53 years.

(c)She is unaware of the disposal of the appeal by the First Appellate Court. She came to know about the same only during the month of November 2020, when her brother informed the villagers that he has succeeded in the appeal.

(d) After the closure of the Regular Appeal, the advocate addressed a postcard to her address. However, she has not received the same.

(e) Right from October 2016, she is suffering from back pain and she has some other medical ailments. It is only in the month of November 2020, she has recovered.

(f) Last but not the least, she has some financial constraints.

Therefore, the delay caused in filing the appeal is neither

intentional nor with any malafide intention. She has a good

case on merits and if delay is not condoned, she will be put to

loss and hence, the delay may be accepted.

10. In the statement of objections it is stated that the

appellant was not diligent in prosecuting the suit before the

Trial Court and she is also not interested in prosecuting the

present appeal.

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Learned counsel Sri.G.S.Balagangadhar., drew the

attention to the order sheet in O.S.No.896/2011. He argued by

saying that the suit is one for partition and separate possession

and plaintiff was examined as PW1 on 22.02.2013 and

documents were marked and later the suit was posted for

cross-examination several times and the matter was also

referred to mediation, but there was no co-operation and active

participation by the plaintiff/ appellant. Hence, in view of the

same, the suit was posted for cross examination of PW1 from

28.04.2015 to 17.12.2015. On 17.12.2015, PW1 was absent,

defendant was present; advocate for plaintiff was not present

and there was no representation on behalf of plaintiff. Hence,

the Trial Court recorded that cross examination of PW1 as nil

for not tendering PW1 for cross examination despite giving

sufficient opportunities. Thereafter, the matter was posted for

arguments on 16.01.2016. Argument of plaintiff was taken a nil

and argument of defendant was heard and subsequently,

Judgment is pronounced on 21.01.2016 decreeing the suit of

the plaintiff.

It is also stated that if witness has not tendered for cross-

examination, the evidence is to be eschewed and the evidence

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is non-est. That means there is no evidence at all. Since PW1

has not tendered for cross examination, the evidence of the

plaintiff is non-est and is to be eschewed. The Trial Court ought

have dismissed the suit. However, taking note of all these

relevant aspects and also considered the case on merits the

Appellate Court rightly dismissed the suit.

Learned counsel Sri.G.S.Balagangadhar., further submits

that the Regular Second Appeal is filed under Section 100 of

CPC and there is almost three years delay in filing the appeal

and sufficient cause is not shown for condonation of delay.

Hence, I.A.No.1/2021 may be dismissed.

11. The plaintiff/ appellant except for saying that she is

unaware of the disposal of the Regular Appeal by the First

Appellate Court and that she was suffering from back pain and

she recovered only in the month of November 2020, no

documents are produced to substantiate the said contention.

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 appellant regarding

delay in filing the appeal are not satisfactory. Hence, this Court

NC: 2023:KHC:21597 RSA No. 27 of 2021

exercises the discretionary power and refuses the extension of

time. I decline to condone the delay and admit the Second

Appeal. Accordingly, I.A.No.1/2021 is rejected.

12. Consequently, the Regular Second Appeal is also

dismissed.

13. 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