Karnataka High Court
Sri Anjinappa vs Smt Padmavathi on 3 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:24953
RSA No. 344 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 344 OF 2018 (PAR)
BETWEEN:
1. SRI ANJINAPPA
S/O LATE KUTUMAIAH,
AGED ABOUT 67 YEARS,
R/AT HOSUR BANDE VILLAGE,
BIDARAHALLI HOBLI,
BENGALURU EAST TALUK-562114.
...APPELLANT
(BY SRI. SIDDHARTH B. MUCHANDI, ADVOCATE)
AND:
SMT. PADMAVATHI
SINCE DEAD BY HER LRS
Digitally signed 1. SRI CHANDRASHEKAR
by DEVIKA M S/O LATE PADMAVATHI,
Location: HIGH AGED ABOUT 37 YEARS
COURT OF
KARNATAKA
2. SMT SUMADEVI
D/O LATE PADMAVATHI,
AGED ABOUT 32 YEARS,
3. SRI LAKSHMIPATHI
S/O LATE PADMAVATHI,
AGED ABOUT 34 YEARS,
4. SRI KRISHNAKUMAR
S/O LATE PADMAVATHI,
AGED ABOUT 35 YEARS,
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NC: 2024:KHC:24953
RSA No. 344 of 2018
THE RESPONDENTS NO.1 TO 4 ARE
RESIDING AT NO.10/3,
ACHUT ROY MUDLIYAR ROAD,
FRAZER TOWN,
BENGALURU-560 005.
5. SMT. LAKSHMI DEVI
D/O LATE MILLAPPA,
W/O M. NARAYANAPPA,
R/AT VENKATESHPURA,
NAGAWARA ROAD,
BENGALURU-560 005.
...RESPONDENTS
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
ORDER DATED 08.11.2017 PASSED ON I.A.NO.I IN
R.A.NO.33/2015 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
DISMISSING I.A.NO.I FOR CONDONATION OF DELAY AND
CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST THE
JUDGEMENT AND DECREE DATED 15.12.2012 PASSED IN
O.S.NO.1030/1996 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
2. The First Appellate Court dismissed the appeal on
the ground that the delay has not been properly explained, in
coming to the conclusion that no sufficient cause has been
shown and I.A. filed under Section 5 of the Limitation Act was
NC: 2024:KHC:24953
dismissed with cost of Rs.500/-. Hence, this second appeal is
filed.
3. No doubt, the matter has not been considered by
the First Appellate Court on merits, having perused the records
of the Trial Court, the judgment was passed in 2012 and appeal
was filed in 2015 and reasons given in the condonation of delay
application is blaming the advocate and the First Appellate
Court also, having considered the material on record,
particularly cross-examining the son of the appellant as P.W.1,
taken note of the fact that he had the knowledge of judgment
and decree of the Trial Court passed in 2012 and though he
contends that he gave the instructions and paid fee to the
advocate, but he did not pursue the matter. Even records
disclose that certified copy was taken on 15.02.2013 and
appeal was filed on 10.03.2015. The First Appellate Court has
also made an observation that without making enquiry whether
the appeal has been really filed before the Court or not, he had
kept quiet and also in the cross-examination, it is elicited that
complaint is given against the counsel for not filing the appeal
and all these facts are taken note of by the First Appellate
Court.
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4. The First Appellate Court also observed that even
though P.W.1 stated that he had lodged the complaint before
Bar Council, no such document is produced before the Court
and hence, not accepted the bald allegations made against the
counsel for the appellant and observed that the same is not
sufficient substantiate the grounds urged by the appellant to
condone the delay. The First Appellate Court further observed
that it is the bounden duty of the appellant that when he came
to know about the judgment and decree passed in the suit,
ought to have approached his advocate to file the appeal within
time and also taken note of the fact that delay period has not
been properly explained by the appellant and held that party
cannot blame his advocate and on that ground, he cannot seek
for condonation of delay and it is also an equal duty of a party
to consult his advocate, appraise him about the facts and give
proper instructions to file appeal and the same has not been
done.
5. When such being the material on record and when
the suit was decreed in 2012 itself, no appeal was filed for a
period of three years and no proper explanation is given for the
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delay. While condoning the delay, the appellant has to show
sufficient cause to condone the delay and no sufficient cause is
shown to condone the same, except blaming his advocate.
Hence, I do not find any ground to reverse the finding of the
First Appellate Court in dismissing the application filed by the
appellant and the First Appellate Court considered the material
on record and even allowed the appellant to lead evidence and
even after leading evidence, no sufficient cause is shown and
unless and until each day's delay is satisfactorily explained, the
question of condoning the delay does not arise.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
