Karnataka High Court
Basappa S/O Hanamappa Badiger vs Kashavva Alias Radha W/O. Gopal Badiger on 21 November, 2024
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RSA No. 100069 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100069 OF 2022 (PAR/POS)
BETWEEN:
BASAPPA S/O. HANAMAPPA BADIGER,
AGE: 56 YEARS, OCC. AGRICULTURE,
R/O. KAINAKATTI, TQ. BADAMI,
DIST. BAGALKOT-587101.
... APPELLANT
(BY KUM. GAYATRI S N, ADVOCATE FOR
SRI. MALLIKARJUNSWAMY B HIREMATH)
AND:
SMT. YAMANAVVA W/O. MAHADEVAPPA BADIGER
Digitally
SINCE DIED BY HER LR'S.,
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
1. KASHAWWA @ RADHA W/O. GOPAL BADIGER,
2024.11.28
10:19:02
+0530
AGE: 35 YEARS, OCC. HOUSEHOLD WORK,
R/O. KAKATI, DIST. BELAGAVI-590002.
2. PREMAVVA W/O. KALAPPA PATTER @ BADIGER,
AGE: 45 YEARS, OCC. HOUSEHOLD,
R/O. BIJAGUPPI, TQ. RAMDURG,
DIST. BELAGAVI-590002.
3. MOUNESH S/O. KALAPPA PATTER @ BADIGER,
AGE: 28 YEARS, OCC. AGRICULTURE,
R/O. BIJAGUPPI, TQ. RAMDURG,
DIST. BELAGAVI-590002.
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RSA No. 100069 of 2022
4. MARUTI S/O. KALAPPA PATTER @ BADIGER,
AGE: 26 YEARS, OCC. STUDENT,
R/O. BIJAGUPPI, TQ. RAMDURG,
DIST. BELAGAVI-590002.
5. MANJUNATH S/O. KALAPPA PATTER @ BADIGER,
AGE: 22 YEARS, OCC. CARPENTER AND AGRICULTURE,
R/O. BIJAGUPPI,
TQ. RAMDURG, DIST. BELAGAVI-590002.
6. BALESH S/O. KALAPPA PATTER @ BADIGER,
AGE: 20 YEARS, OCC. STUDENT,
R/O. BIJAGUPPI, TQ. RAMDURG,
DIST. BELAGAVI-590002.
7. NARAYANAPPA S/O. MAHADEVAPPA BADIGER,
AGE: 50 YEARS, OCC. AGRICULTURE,
R/O. KERUR, TQ. BADAMI,
DIST. BAGALKOT-587101.
8. LAXMAVVA W/O. DEVENDRAPPA BADIGER,
AGED ABOUT 45 YEARS,
OCC. HOUSEHOLD WORK,
R/O. DEVINAL,
TALUK: BAGALKOT-587101.
9. ANUSUYA W/O. SHIVAPPA BADIGER,
AGED ABOUT 62 YEARS,
OCC. HOUSEHOLD WORK,
R/O. KERUR, TALUK: BADAMI,
DIST. BAGALKOT-587101.
10. SHANTAVVA W/O. YAMANAPPA KAMMAR,
AGED ABOUT 60 YEARS,
OCC. HOUSEHOLD WORK,
R/O. ITAGI, TALUK:
BASAVANA BAGEWADI-587101.
... RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE ORDER DATED 18.09.2018 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT
BADAMI IN R.A.NO.17/2015 AND CONSEQUENTLY DISMISS THE
SUIT BY SETTING ASIDE THE JUDGMENT AND DECREE DATED
12.02.2009 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN) AND
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RSA No. 100069 of 2022
JUDICIAL MAGISTRATE FIRST CLASS AT BADAMI IN
O.S.NO.48/2006, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
The present appeal is accompanied with I.A.
No.2/2022 to condone the delay of 576 days in preferring
the appeal. The grounds urged in the affidavit
accompanying I.A. No.2/2022 is at para No.5 which is
culled out as under:
"5. I state that after the judgment was passed by
the 1st Appellate Court due to ongoing pandemic
I could not keep in contact with my advocate
and was under the impression that appeal may
take some time for disposal. And after coming to
know about the disposal of the case I have
immediately contact my advocate and took all
the necessary documents and preferred this
appeal. As I could not keep the track of my case
due to personal and on-going pandemic there is
some delay in filing this appeal which is neither
intentional nor deliberate."
2. The reasons stated to condone the delay of 576
days in preferring the appeal is that the judgment was
passed by the First Appellate Court during the Covid-19
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Pandemic and he could not contact his counsel and he was
under the impression that the appeal may take some time
for disposal and after coming to know about the disposal
of the case, immediately he contacted his counsel, made
necessary arrangements and delay is caused due to the
said reasons.
3. Suit is one for partition and separate
possession, the present appellant was arrayed as
defendant No.6 before the trial Court. Admittedly,
defendant No.6 was placed exparte. The trial Court based
on the oral and documentary evidence held that the
plaintiff is entitled for 1/4th share in the suit property and
also entitled for possession. Defendant No.6 preferred
appeal before the First Appellate Court with a delay of six
years three months fourteen days. Along with the regular
appeal, application in I.A.1 was filed seeking to condone
the said delay of six years three months fourteen days in
filing the regular appeal. Reasons indicated was that he
was placed exparte and he had no knowledge about
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passing of the judgment and decree and only he came to
know recently and hence, filed an appeal. Respondent
Nos.3 to 5 filed objections to the said application inter alia
contending that the appellant had knowledge about the
judgment and decree passed in O.S. No.48/2006, as in the
final decree proceedings initiated in FDP. No.6/2011, the
defendant No.6 was arrayed as respondent No.6 and he
appeared along with respondent Nos.1, 4 and 5, hence,
sought for dismissal of the application filed to condone the
delay of six years three months fourteen days. The First
Appellate Court while considering the reasons assigned in
the affidavit accompanying I.A.1 arrived at a conclusion
that in FDP.No.6/2011 the present appellant was arrayed
as respondent No.6 and he was served with a notice
personally, on perusal of the order sheet the First
Appellate Court held that the present appellant had filed
objections to I.A. No.1 before the final decree Court. The
appellant personally served in the FDP. No.6/2011 on
06.08.2011 and the R.A. No.17/2015 was preferred only
on 02.05.2015 and observing that the appellant had
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knowledge about the preliminary decree in the year 2011
itself and no satisfactory explanation is offered by the
appellant to show sufficient cause to condone the delay in
filing the appeal has dismissed I.A. No.1 filed under
Section 5 of the Limitation Act and consequently dismissed
the regular appeal as well. Against which, the present
appeal is filed by defendant No.6 with a delay of 576 days
in preferring the appeal.
4. The question that falls for consideration before
this Court is that "whether in the facts and circumstances
of the reasons indicated above, the appellant has made
out sufficient ground to condone the inordinate delay
before this court as well as the appellate court ?"
5. The law of limitation finds its routes in the legal
maxim "Interest reipublicae ut sit fanis litum" which
means that in the interest of the state as whole there
should be a limit to litigation and "vigilantibus non
dormeientibus jura subveniunt" which means the law will
assist only those who are vigilant to their rights and not
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those who sleep upon it. The law of limitation specifies
the statutory time frame within which a person may
initiate a legal proceedings or a legal action can be
brought. If the suit is filed after the expiry of the time
prescribed, it will be barred by limitation, it means that the
suit brought before the Court after the expiry of the time
within which a legal proceedings to be initiated will be
restricted.
6. Section 3 of the Limitation Act, 1963 lays down
the general rule that if any suit, appeal and application
made after the prescribed period shall be dismissed
although limitation has not been setup as a defence, the
exceptions are culled out under Section 4 to 24 of the
Limitation Act, and this Court is concerned about Section 5
of the Limitation Act, which empowers the Court to admit
an appeal even if it is preferred after the prescribed period
provided the proposed appellants give "sufficient cause"
for not preferring the appeal within the prescribed period,
in other words the Courts have conferred with
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discretionary powers to admit an appeal even after the
expiry of the prescribed period provided the proposed
appellants are able to establish "sufficient cause" for not
filing within time.
7. The said power to condone the delay and admit
the appeal preferred after the expiry of the time is
discretionary in nature and may not be exercised even if
"sufficient cause" is shown based upon post of other
factors such as negligence, failure to exercise due
diligence, etc., the Apex Court in the case of Collector,
Land Acquisition, Anantnag and Other Vs. Katiji and
Others1 has held in advocating the liberal approach in
condoning the delay for sufficient cause held that
ordinarily a litigant does not stand to benefit by lodging an
appeal late: it is not necessary to explain every days delay
in filing the appeal: and since some time refusal to
condone the delay may result in throwing out the
meritorious matter, it is necessary in the interest of justice
(1987) 2 SCC 107
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that cause of substantial justice should be allowed to
prevail upon the technical consideration and if the delay is
not deliberate, it not be condoned. Notwithstanding the
above, however liberal approach is adopted in condoning
the delay, existence of "sufficient cause" for not filing the
appeal in time is a condition precedent for exercising the
discretionary power to condone the delay.
8. The phrases "liberal approach, justice oriented
approach" and cause for the advancement of "substantial
justice" cannot be employed to defeat the law of limitation
so as to allow the stale matters or as a matter of fact dead
matters to be revived and reopened by taking aid of
Section 5 of the Limitation Act. In the instant case, the
delay is 576 days in this appeal, and six years and above
before the First Appellate court. Section 5 of the Limitation
Act, prescribes a certain period for filing an appeal,
substantial right has already been created in favour of the
decree holder herein and this right ought not to be lightly
disturbed, the decree holder has already created a decree
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in her favour by lapse of time. The Apex Court in the case
of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields
ltd.,2 has emphasized that even after sufficient cause has
been shown by a party for not filing an appeal within time,
the said party is not entitled to the condonation of delay
as excusing the delay is the discretionary jurisdiction
vested with the Court. The Court, despite establishment of
"sufficient cause" for various reasons may refuse to
condone the delay depending upon the bonafide of the
party.
9. The Apex Court in the case of Lanka
Venkateswarlu (Dead) By LRs Vs. State of Andhra
Pradesh and Others3 has observed that despite an
unsatisfactory explanation for the delay of 3703 days, the
High Court had allowed application for condonation of
delay, the Apex Court held that the High Court failed to
exercise its discretion in a reasonable and objective
manner. The High Court should have exercised the
AIR 1962 SC 361
(2011) 4 SCC 363
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discretion in a systematic and in informed manner. The
liberal approach in considering the sufficiency of the cause
for delay should not allowed to over ride the substantial
law of limitation. The Court further observed that the
concepts such as "liberal approach" "justice oriented
approach" and "substantial justice" cannot be employed to
jettison the substantial law of limitation. The Apex Court in
the later judgment of Basawaraj and Anr. vs. Special
Land Acquisition Officer (Basawaraj) has observed
that the discretion to condone the delay has to be
exercised judiciously based upon the facts and
circumstances of each case. "Sufficient cause", as
occurring in Section 5 of the Limitation Act, cannot be
liberally interpreted if negligence, inaction or lack of
bonafide is writ large. It has also observed even though
limitation may harshly affect the rights of the parties but it
has to be applied with all its rigour as prescribed under the
statute and the Courts have no choice but to apply the law
(2013) 14 SCC 81
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as it stands and they have no power to condone the delay
on equitable grounds and at paragraph No.12 and 15 has
held as under:
"12. It is a settled legal proposition that law of
limitation may harshly affect a particular party but it
has to be applied with all its rigour when the statute
so prescribes. The court has no power to extend the
period of limitation on equitable grounds. "A result
flowing from a statutory provision is never an evil. A
court has no power to ignore that provision to relieve
what it considers a distress resulting from its
operation." The statutory provision may cause
hardship or inconvenience to a particular party but
the court has no choice but to enforce it giving full
effect to the same. The legal maxim dura lex sed lex
which means "the law is hard but it is the law",
stands attracted in such a situation. It has
consistently been held that, "inconvenience is not" a
decisive factor to be considered while interpreting a
statute.
15. The law on the issue can be summarised to the
effect that where a case has been presented in the
court beyond limitation, the applicant has to explain
the court as to what was the "sufficient cause" which
means an adequate and enough reason which
prevented him to approach the court within
limitation. In case a party is found to be negligent, or
for want of bonafide on his part in the facts and
circumstances of the case, or found to have not
acted diligently or remained inactive, there cannot be
a justified ground to condone the delay. No court
could be justified in condoning such an inordinate
delay by imposing any condition whatsoever. The
application is to be decided only within the
parameters laid down by this court in regard to the
condonation of delay. In case there was no sufficient
cause to prevent a litigant to approach the court on
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time condoning the delay without any justification,
putting any condition whatsoever, amounts to
passing an order in violation of the statutory
provisions and it tantamounts to showing utter
disregard to the legislature."
10. In the recent decision the Apex Court in the
case of Pathapati Subba Reddy (Died) by L.Rs. and
Ors. v. The Special Deputy Collector (LA)5 has given a
consideration to the provisions of law as aforesaid and has
held at paragraph No.26 as under:
"26. On a harmonious consideration of the provisions of
the law, as aforesaid, and the law laid down by this
Court, it is evident that:
(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised
or availed of for a long time must come to an end or
cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be
construed in a strict sense whereas Section 5 has to be
construed liberally;
(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or cause of
substantial justice may be kept in mind but the same
2024 SCC Online SC 513
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cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary in
nature and may not be exercised even if sufficient
cause is established for various factors such as, where
there is inordinate delay, negligence and want of due
diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also entitled to
the same benefit if the court is not satisfied with the
cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be
considered in condoning the delay; and
(viii) Delay condonation application has to be decided
on the parameters laid down for condoning the delay
and condoning the delay for the reason that the
conditions have been imposed, tantamounts to
disregarding the statutory provision."
11. The Apex Court in another judgment in the case
of Ajay Dabra Vs. Pyare Ram and Ors6 has observed
that an appeal has to be filed within a stipulated period
prescribed under the law belated appeals can only be
condoned, when "sufficient reasons" are shown before the
Court for the delay and the Courts should not be pedantic
in their approach while condoning the delay and the
2023 live law (SC) 69
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explanation of each day's delay should not be taken
literally but the fact remains there must be a reasonable
explanation for the delay and at paragraph No.5 has held
as under:
"5. What we have here is a pure civil matter. An
appeal has to be filed within the stipulated period,
prescribed under the law. Belated appeals can only be
condoned, when sufficient reason is shown before the
court for the delay. The appellant who seeks
condonation of delay therefore must explain the delay
of each day. It is true that the courts should not be
pedantic in their approach while condoning the delay,
and explanation of each day's delay should not be
taken literally, but the fact remains that there must be
a reasonable explanation for the delay. In the present
case, this delay has not been explained to the
satisfaction of the court. The only reason assigned by
the appellant for the delay of 254 days in filing the First
Appeal was that he was not having sufficient funds to
pay the court fee! This was not found to be a sufficient
reason for the condonation of delay as the appellant
was an affluent businessman and a hotelier. In any
case, even it is presumed for the sake of argument that
the appellant was short of funds, at the relevant point
of time and was not able to pay court fee, nothing
barred him from filing the appeal as there is provision
under the law for filing a defective appeal, i.e., an
appeal which is deficient as far as court fee is
concerned, provided the court fee is paid within the
time given by the Court. We would refer to Section 149
of Civil Procedure Code, 1908 which reads as under :-
"Section 149: Power to make up deficiency of Court
Fees.- Where the whole or any part of any fee
prescribed for any document by the law for the time
being in force relating to court fees has not been paid,
the Court may, in its discretion, at any stage, allow the
person, by whom such fee is payable, to pay the whole
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or part, as the case may be, of such court-fee, and
upon such payment the document, in respect of which
such fee is payable, shall have the same force and
effect as if such fee had been paid in the first instance."
It also needs to be emphasized that this Court
as well as various High Courts, have held that
Section 149 CPC acts as an exception, or even a
proviso to Section 4 of Court Fees Act 1870. In terms
of Section 4, an appeal cannot be filed before a High
Court without court fee, if the same is prescribed.
But this provision has to be read along with Section
149 of CPC which we have referred above. A short
background to the incorporation of Section 149 in
CPC would explain this aspect."
12. The First Appellate Court has rightly dismissed
the application filed by the appellant seeking to condone
the delay of six years three months fourteen days in
preferring the regular appeal. The appellant has made out
no ground even to condone the delay of 576 days in
preferring the appeal as well and accordingly, I.A.
No.2/2022 is rejected and consequently, the regular
second appeal stands dismissed.
SD/-
(JUSTICE K.S.HEMALEKHA)
RH
