Karnataka High Court
Smt.Thimmakka vs Gowdachitappa on 26 June, 2023
Bench: Jyoti Mulimani
-1-
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RSA No. 979 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 979 OF 2020 (SP)
BETWEEN:
1. SMT.THIMMAKKA
D/O LATE MARAPPA,
AGED ABOUT 54 YEARS.
2. SRI NAGARAJU
S/O THIMMAKKA,
AGED 37 YEARS,
BOTH ARE R/O
KOTHURU VILLAGE,
NIDAGAL HOBLI, PAVAGADA TALUK,
TUMAKURU DISTRICT - 572 116.
...APPELLANTS
(BY SRI.MANJUNATH B R., ADVOCATE)
Digitally signed by
THEJASKUMAR N
Location: HIGH
AND:
COURT OF
KARNATAKA
1. GOWDACHITAPPA
S/O LATE YARRI CHIKKAPPA,
AGED ABOUT 57 YEARS,
R/OF KOTHURU VILLAGE,
NIDGAL HOBLI,
PAVAGADA TALUK,
TUMAKURU DISTRICT - 572 116.
2. JAYAMMA
W/O LATE MARAPPA,
AGED ABOUT 73 YEARS,
-2-
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RSA No. 979 of 2020
3. CHOWDAPPA
S/O LATE MARAPPA,
AGED ABOUT 50 YEARS.
4. MANJUNATHA
S/O LATE MARAPPA,
AGED ABOUT 43 YEARS,
5. RAJA
S/O LATE MARAPPA,
AGED ABOUT 38 YEARS,
RESPONDENT NO.2 TO 5 ARE
R/O THADANGIPALLY VILLAGE,
KOTHAPALLY POST,
RODDAM MANDALAM,
PENUKONDA TALUK,
ANANTHAPUR DISTRICT,
ANDHRA PRADESH - 515 124.
...RESPONDENTS
(BY SRI. SAGAR B B., ADVOCATE FOR R1;
R2, R3 & R5 ARE SERVED;
NOTICE TO R4 IS HELD SUFFICIENT)
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:
JUDGMENT
Sri.Manjunath.B.R., learned counsel for appellants has
appeared in person.
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RSA No. 979 of 2020
2. The captioned appeal is listed today for hearing
interlocutory application i.e., I.A.No.1/2020 for condonation of
a delay of 122 days in filing the appeal.
3. Sri.Manjunath.B.R., learned counsel for the
appellant submits that there is a delay of 122 days in filing the
second appeal. Sri.Nagaraju - 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 appellant will be put
to hardship. Hence, he submits that the delay of 122 days in
filing the appeal may be condoned.
4. Heard, the contentions urged on behalf of the
appellant on condonation of delay and perused the appeal
papers, application and also the affidavit filed in support of
I.A.No.1/2020 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
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RSA No. 979 of 2020
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
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.
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RSA No. 979 of 2020
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
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 Addl.
Civil Judge & JMFC, Pavagada in O.S.No.222/2011. The Trial
Court vide Judgment and Decree dated:22.03.2018 decreed the
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suit. Aggrieved by the Judgment & Decree of the Trial Court,
the defendants 5 & 6 preferred an appeal in R.A.No.26/2018 on
the file of Senior Civil Judge & JMFC, Pavagada. On appeal, the
First Appellate Court vide Judgment & Decree
dated:03.07.2019 confirmed the Judgment & Decree of the
Trial Court and dismissed the appeal. The defendants 5 & 6
aggrieved by the Judgment and Decree of the First Appellate
Court, preferred this appeal under Section 100 of CPC on
21.03.2020. There is a delay of 122 days in filing the appeal.
7. I have perused the application I.A.No.1/2020 and
also the affidavit. Sri.Nagaraju - the second appellant has
sworn to the affidavit. In the affidavit, his name is shown as
Nagaraju S/o.Thimmakka. He has stated that he had suffered
from low back ache and he was advised to take bed rest from
05.07.2019 till 04.09.2019, as such he was unable to move out
of the house. His mother is aged 54 years and an illiterate
women and she could not contact the counsel to collect the
case papers and file an appeal. It is also stated that it is only
on 04.03.2020, he requested his counsel on record to obtain
the certified copy of the impugned Judgment & Decree of the
Trial Court and accordingly, received the same on 06.03.2020
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RSA No. 979 of 2020
and thereafter, he contacted his counsel to file an appeal. The
medical certificate and out patient case sheet are furnished
along with the application.
I have perused the affidavit with utmost care. The second
appellant has stated that he has suffered from back ache from
05.07.2019 till 04.09.2019. The out patient record is
dated:10.01.2020 and the same is furnished along with
application which is at Annexure "A". In the Out patient report,
the name is shown as Mr.Nagaraju S/o.Venkataramanappa, but
in the proceedings he has been shown as S/o.Thimmakka.
Thimmakka is the mother and she has been shown as D/o.Late
Marappa.
The medical certificate is produced at Annexure-B. It is
dated:10.10.2019. The Medical certificate is on a letter head of
a doctor by name Dr.K.G.Jagadeesh, MBBS, DGO. It has been
certified that "V.Nagaraju R/o Kothur Pavagada Taluk had
suffered from Low Back ache and advised Treatment and Rest
for 2 months from 5-7-2019 to 4/9/19". But in the proceedings,
the name of the second appellant is shown as Nagaraju and not
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RSA No. 979 of 2020
V.Nagaraju. Hence, it is hard to believe the documents annexed
along with the application.
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.1/2020 is rejected.
8. Resultantly, the Regular Second Appeal is
dismissed.
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
