Karnataka High Court
Sri. G. S. Suresh vs Sri. G. M. Shivalingappa on 30 July, 2024
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RSA No. 216 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 216 OF 2017 (PAR)
BETWEEN:
SRI. G. S. SURESH,
SON OF M. SHIVALINGAPPA,
AGED ABOUT 45 YEARS,
AGRICULTURIST,
RESIDING AT YEREHALLI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213.
...APPELLANT
(BY SRI. R. KIRAN., ADVOCATE)
AND:
1. SRI. G. M. SHIVALINGAPPA,
SON OF LATE MALLAPPA,
Digitally signed by AGED ABOUT 67 YEARS,
MAHALAKSHMI B M
Location: HIGH
COURT OF 2. SMT. SULOCHANAMMA,
KARNATAKA
WIFE OF SHIVALINGAPPA,
AGED ABOUT 63 YEARS,
3. SMT. MANJULA,
WIFE OF CHANDRASHEKARAPPA,
AGED ABOUT 46 YEARS,
RESIDING AT
GANGAGONDANAHALLI VILLAGE,
CHANNAGIRI TALUK - 577 213.
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RSA No. 216 of 2017
4. SRI. G.S. HALESH,
SON OF SHIVALINGAPPA,
AGED ABOUT 42 YEARS,
5. SMT. SUNANDA,
WIFE OF SRI. GURUMURTHY,
AGED ABOUT 30 YEARS,
HOUSEHOLD WORK,
RESIDING AT KEMPANAHALLI VILLAGE,
CHANNAGIRI TALUK - 577 544.
6. SRI. KALYAN KUMAR,
SON OF SRI. G.M. SHIVALINGAPPA,
AGED ABOUT 39 YEARS,
ALL ARE AGRICULTURIST,
SL.NOs.1, 2, 4 & 6 ARE
RESIDING AT YEREHALLI VILLAGE,
KASABA HOBLI,
CHANNAGIRI TALUK - 572 213.
7. SRI. H.M. SHIVALINGAIAH,
SON OF SRI. MAHADEVAIAH,
AGED ABOUT 55 YEARS,
RESIDING AT HARONAHALLI VILLAGE - 577 213.
8. SRI. G.M. BASAVARAJAPPA,
SON OF SRI. MALLAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT YEREHALLI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 213.
...RESPONDENTS
(BY SRI.R.GURURAJ, ADVOCATE FOR R1, R2, R5 & R6;
R3, R4, R7 & R8 ARE SERVED AND UNREPRESENTED)
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RSA No. 216 of 2017
THIS RSA IS FILED U/S 100 OF CPC., 1908 AGAINST THE
ORDER DATED 11.01.2017 PASSED ON IA NO.1 IN
R.A.29/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC CHANNAGIRI, DISMISSING THE I A NO.1 FILED UNDER
SECTION 5 OF LIMITATION ACT AND FILED AGAINST THE
JUDGMENT AND DECREE DATED 16.12.2013 PASSED IN
O.S.NO.966/2007 ON THE FILE OF THE PRL. CIVIL JUDGE, AND
JMFC CHANNAGIRI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Plaintiff is before this Court assailing the order dated
11.01.2017 passed on IA No.I in RA No.29/2015 by the
Senior Civil Judge and JMFC at Channagiri (hereinafter
referred to as 'the First Appellate Court' for the sake of
brevity), whereby, the application - IA No.1 filed under
Section 5 of the Limitation Act seeking to condone the
delay of 641 days in preferring the appeal was dismissed,
consequently, dismissing the regular appeal on the ground
of delay.
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2. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
3. This Court framed the following substantial
question of law, which reads as under;
"Whether the First Appellate Court was justified in
dismissing the appeal on the ground of delay?"
4. Plaintiff-respondent instituted a suit for partition
and separate possession of 1/6th share in the Suit
Schedule Properties. The said suit was decreed in part,
holding that the plaintiff is entitled for 1/6th share in Suit
Schedule Item Nos.1 to 3, 5 and 8 to 13 and dismissed the
claim of the plaintiff insofar as item Nos.4, 6 and 7.
Aggrieved by the judgment and decree of non-granting of
share, the plaintiff preferred an appeal before the First
Appellate Court, along with the appeal, the plaintiff filed an
application- IA No.I under Section 5 of the Limitation Act
seeking to condone the delay of 1 year 9 months 12 days
in preferring the appeal. Defendants filed objections to
the said application before the First Appellate Court.
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5. The First Appellate Court after hearing both the
parties arrived at a conclusion that the explanation offered
by the appellant is not satisfactory and lacks genuinity and
dismissed the appeal on the ground of delay.
6. It is contended by the appellants that dismissal
of the application under Section 5 of the Limitation Act is
erroneous, as the First Appellate Court did not consider
the 'sufficient cause' raised by the appellant for condoning
the delay and the appeal before the First Appellate Court
under Section 96 CPC, being a statutory right requires to
be condoned in the interest of justice when there is no
gross negligence or deliberate inaction by the appellant
seeking to condone the delay.
7. The perusal of the reasons assigned by the
appellant to condone the delay in preferring the appeal
was that, the plaintiff, his father and the defendants were
trying for an amicable settlement after the disposal of the
suit and the delay was due to bonafide reasons.
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8. The Apex Court in the case of Bhivchandra
Shankar More Vs. Balu Gangaram More and Others
reported in (2019) 6 SCC 387 held at paragraph
Nos.12, 15, 16 and 17 as under:
"12. The right of appeal under Section 96(2)
CPC is a statutory right and the defendant cannot be
deprived of the statutory right of appeal merely on
the ground that the application filed by him under
Order 9 Rule 13 CPC has been dismissed. In Bhanu
Kumar Jain v. Archana Kumar, the Supreme Court
considered the question whether the first appeal was
maintainable despite the fact that an application
under Order 9 Rule 13 CPC was filed and dismissed.
Observing that the right of appeal is a statutory right
and that the litigant cannot be deprived of such
right, in paras (36) and (38), it was held as under:
(SCC pp. 799-800)
"36. ... A right to question the correctness of
the decree in a first appeal is a statutory right. Such
a right shall not be curtailed nor shall any embargo
be fixed thereupon unless the statute expressly or by
necessary implication says so. (See Deepal
Girishbhai Soni v. United India Insurance Co. Ltd.
and Chandragupta P.K. v. C.K. Saji.)
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38. The dichotomy, in our opinion, can be
resolved by holding that whereas the defendant
would not be permitted to raise a contention as
regards the correctness or otherwise of the order
posting the suit for ex parte hearing by the trial court
and/or existence of a sufficient case for non-
appearance of the defendant before it, it would be
open to him to argue in the first appeal filed by him
under Section 96(2) of the Code on the merits of the
suit so as to enable him to contend that the
materials brought on record by the plaintiffs were
not sufficient for passing a decree in his favour or the
suit was otherwise not maintainable. Lack of
jurisdiction of the court can also be a possible plea in
such an appeal. We, however, agree with Mr
Chaudhari that the "Explanation" appended to Order
9 Rule 13 of the Code shall receive a strict
construction as was held by this Court in Rani
Choudhury v. Suraj Jit Choudhary, P.Kiran Kumar v.
A.S.Khadar and Shyam Sundar Sarma v Pannalal
Jaiswal."
15. It is a fairly well-settled law that "sufficient
cause" should be given liberal construction so as to
advance sustainable justice when there is no
inaction, no negligence nor want of bona fides could
be imputable to the appellant. After referring to
various judgments, in B. Madhuri, this Court held as
under: (SCC p. 696, para 6)
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"6. The expression "sufficient cause" used
in Section 5 of the Limitation Act, 1963 and
other statutes is elastic enough to enable the
courts to apply the law in a meaningful
manner which serves the ends of justice. No
hard-and-fast rule has been or can be laid
down for deciding the applications for
condonation of delay but over the years
courts have repeatedly observed that a liberal
approach needs to be adopted in such matters
so that substantive rights of the parties are
not defeated only on the ground of delay"
16. Observing that the rules of limitation are
not meant to destroy the rights of the parties, in
N.Balakrishnan v. M.Krishnamurthy, this Court held
as under: (SCC pp. 127-28, para 11)
"11. Rules of limitation are not meant to
destroy the rights of parties. They are meant
to see that parties do not resort to dilatory
tactics, but seek their remedy promptly. The
object of providing a legal remedy is to
repair the damage caused by reason of legal
injury. The law of limitation fixes a lifespan
for such legal remedy for the redress of the
legal injury so suffered. Time is precious and
wasted time would never revisit. During the
efflux of time, newer causes would sprout up
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necessitating newer persons to seek legal
remedy by approaching the courts. So a
lifespan must be fixed for each remedy.
Unending period for launching the remedy
may lead to unending uncertainty and
consequential anarchy. The law of limitation
is thus founded on public policy. It is
enshrined in the maxim interest reipublicae
up sit finis litium (it is for the general welfare
that a period be put to litigation). Rules of
limitation are not meant to destroy the
rights of the parties. They are meant to see
that parties do not resort to dilatory tactics
but seek their remedy promptly. The idea is
that every legal remedy must be kept alive
for a legislatively fixed period of time."
17. As pointed out earlier, an appeal under
Section 96 CPC is a statutory right. Generally, delays in
preferring appeals are required to be condoned, in the
interest of justice, where there is no gross negligence or
deliberate inaction or lack of bona fides is imputable to
the party seeking condonation of delay."
9. The appeal under Section 96 CPC being a statutory
right, generally delay in preferring the appeal are required
to be condoned in the interest of justice, where there is no
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gross negligence or deliberate inaction or lack of bonafides
is imputable to the party seeking condonation of delay.
10. The Apex Court in the case of N. Balakrishnan
Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 at
paragraph Nos.9, 10, 11, 12 and 13 held that the rules of
limitation are not meant to destroy the rights of the
parties, which reads as under:
"9. It is axiomatic that condonation of delay is
a matter of discretion of the court. Section 5 of the
Limitation Act does not say that such discretion can
be exercised only if the delay is within a certain limit.
Length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes delay of
the shortest range may be uncondonable due to a
want of acceptable explanation whereas in certain
other cases, delay of a very long range can be
condoned as the explanation thereof is satisfactory.
Once the court accepts the explanation as sufficient,
it is the result of positive exercise of discretion and
normally the superior court should not disturb such
finding, much less in revisional jurisdiction, unless
the exercise of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is a different
matter when the first court refuses to condone the
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delay. In such cases, the superior court would be
free to consider the cause shown for the delay afresh
and it is open to such superior court to come to its
own finding even untrammeled by the conclusion of
the lower court.
10. The reason for such a different stance is
thus:
The primary function of a court is to
adjudicate the dispute between the parties and to
advance substantial justice. The time-limit fixed for
approaching the court in different situations is not
because on the expiry of such time a bad cause
would transform into a good cause.
11. Rules of limitation are not meant to
destroy the rights of parties. They are meant to see
that parties do not resort to dilatory tactics, but
seek their remedy promptly. The object of providing
a legal remedy is to repair the damage caused by
reason of legal injury. The law of limitation fixes a
lifespan for such legal remedy for the redress of the
legal injury so suffered. Time is precious and wasted
time would never revisit. During the efflux of time,
newer causes would sprout up necessitating newer
persons to seek legal remedy by approaching the
courts. So a lifespan must be fixed for each remedy.
Unending period for launching the remedy may lead
to unending uncertainty and consequential anarchy.
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The law of limitation is thus founded on public
policy. It is enshrined in the maxim interest
reipublicae up sit finis litium (it is for the general
welfare that a period be put to litigation). Rules of
limitation are not meant to destroy the rights of the
parties. They are meant to see that parties do not
resort to dilatory tactics but seek their remedy
promptly. The idea is that every legal remedy must
be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone
delay would result in foreclosing a suitor from
putting forth his cause. There is no presumption
that delay in approaching the court is always
deliberate. This Court has held that the words
"sufficient cause" under Section 5 of the Limitation
Act should receive a liberal construction so as to
advance substantial justice vide Shakuntala Devi
Jain v. Kuntal Kumari and State of W.B. v.
Administrator, Howrah Municipality.
13. It must be remembered that in every case
of delay, there can be some lapse on the part of the
litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If
the explanation does not smack of mala fides or it is
not put forth as part of a dilatory strategy, the court
must show utmost consideration to the suitor. But
when there is reasonable ground to think that the
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delay was occasioned by the party deliberately to
gain time, then the court should lean against
acceptance of the explanation. While condoning the
delay, the court should not forget the opposite party
altogether. It must be borne in mind that he is a
loser and he too would have incurred quite large
litigation expenses. It would be a salutary guideline
that when courts condone the delay due to laches
on the part of the applicant, the court shall
compensate the opposite party for his loss."
11. In the instant case, the appeal under Section 96
CPC was preferred with delay of 641 days in filing the
appeal. The reasons assigned by the appellant for delay in
preferring the appeal is the settlement that was going on
between the parties. The First Appellate Court dismissed
the appeal on the ground of delay. By enacting Section 5
of the Limitation Act, 1963, the legislation has conferred
the power to condone the delay in order to enable the
Courts to do substantial justice to the parties by disposing
the matter on "merits". The expression 'sufficient cause'
employed by legislature is adequately elastic to enable the
Courts to apply the law in a meaningful manner which
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sub-serves the ends of justice and that being the life
purpose for the existence of the intuition of Courts and
refusing to condone the delay can result in miscarriage of
justice. For the foregoing reasons, the substantial question
of law needs to be answered in the affirmative by
condoning the delay of 641 days in preferring the appeal
and the appeal needs to be remitted back to the First
Appellate Court with a direction to consider the appeal on
merits after affording sufficient opportunity to both the
parties. However, looking into the relationship between
the parties, the cost for delay in preferring the appeal is
not imposed. Accordingly, this Court pass the following:
ORDER
i. The Regular Second Appeal is allowed.
ii. The judgment and decree of the First
Appellate Court dated 11.01.2017 passed on
I.A.No.1 is hereby set aside and I.A.No.1 is
allowed, delay of 641 days in filing the
appeal is condoned.
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iii. The matter is remitted back to the First
Appellate Court and the parties are directed
to appear before the First Appellate Court on
19.08.2024 and the First Appellate Court to
consider the appeal on merits after affording
sufficient and reasonable opportunity to both
the parties.
Ordered accordingly.
Sd/-
(K.S. HEMALEKHA)
JUDGE
PN
