Karnataka High Court
The State Of Karnataka vs Sri.Gatti Channabasappa on 1 August, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
NC: 2024:KHC-D:10842
RFA No. 100598 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO. 100598 OF 2019 (MON)
BETWEEN:
THE STATE OF KARNATAKA,
REPRESENTED BY ITS AUTHORIZED OFFICER,
THE EXECUTIVE ENGINEER,
MINOR IRRIGATION DIVISION,
CANTONMENT, BALLARI.
...APPELLANT
(BY SRI. SHIVAPRABHU.S.HIREMATH., AGA)
AND:
SRI. GATTI CHANNABASAPPA,
RETIRED ASSISTANT EXECUTIVE ENGINEER,
R/O: SHANKAR COLONY, S.N.PET ROAD,
BALLARI.
...RESPONDENT
(BY SRI. SABEEL AHMED., ADVOCATE)
Digitally signed by
THEJASKUMAR N
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
Location: HIGH
COURT OF 96 OF CODE OF CIVIL PROCEDURE, 1908.
KARNATAKA
THIS REGULAR FIRST APPEAL IS LISTED FOR FURTHER
ORDERS, THIS DAY, AN ORDER IS MADE AS UNDER:
ORAL ORDER
Sri.Shivaprabhu S.Hiremath., learned AGA for the
appellant and Sri.Sabeel Ahmed., learned counsel for the
respondent have appeared in person.
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2. The captioned appeal is listed today for hearing
interlocutory application regarding I.A.No.1/2022 for
condonation of a delay of 638 days in filing the appeal.
Learned counsel appearing on behalf of respective parties
urged several contentions.
3. Learned AGA submits that there is a delay of 638
days in filing the appeal. He further submits that Devadas - the
Executive Engineer of Minor Irrigation Division, Bellary has
sworn to an affidavit explaining the sufficiency of reason to
condone the delay. Learned AGA 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 638 days in
filing the appeal may be condoned.
Counsel Sri.Sabeel Ahmed., submits that an appropriate
order may be passed.
4. Heard, the contentions urged on behalf of the
respective parties and perused the appeal papers with utmost
care.
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5. The short question that requires consideration is
whether the delay in filing the appeal can be condoned.
Before I answer the question, 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
ground that the extension of time under that Section is a
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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 concerning the circumstances of each case.
Each case must be decided on its facts. But it must not be lost
of sight that the petitioner/ appellant will have to prove that he
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was diligent. Further, he will have to explain the 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 recovery of money. The suit was filed on the file of Prl.
Senior Civil Judge & C.J.M, Ballari in O.S.No.267/2012. The
Trial Court vide Judgment dated 16th day of December 2017
dismissed the suit. Aggrieved by the Judgment and Decree of
the Trial Court, the plaintiff preferred this appeal under Section
96 of CPC on 18.12.2019. There is a delay of 638 days in filing
the appeal.
The law is well settled that if an appeal is filed beyond the
period of limitation, the appeal memo must be accompanied by
an application for condonation of delay. In the present case,
the application to condone the delay was not filed when the
appeal was filed in the year 2019. After a lapse of almost three
years, an application to condone the delay was filed. The
conduct of the officials of the Government depicts that they are
not diligent in the litigation.
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Perused the application I.A.No.1/2022 and the statement
of facts. T.Devadas - the Executive Engineer Minor Irrigation
Division, Bellary has sworn to a declaration of facts in the form
of an affidavit. It is stated that after taking a legal opinion to
file an appeal, the file was moved from one department to
another seeking necessary approval. It is further stated that
the delay in submitting a report is caused on account of
vacancy in the post of the Special Director. It is pivotal to note
that the file was under motion from one department to another
for almost two to three years. Furthermore, the appellant will
have to prove that he was diligent. He will have to explain the
day-to-day delay from the last day of limitation. The same is
lacking in the present case. The law is well settled that 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. Hence, this Court declines
to exercise the discretionary power and refuses an extension of
time. Therefore, I decline to condone the delay. Accordingly,
I.A.No.1/2022 is dismissed.
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7. Resultantly, the Regular First Appeal is dismissed.
Sd/-
(JYOTI MULIMANI)
JUDGE
TKN
