Karnataka High Court

Galewwa W/O Durugappa Madar Alias ... vs Tirakappa S/O Neelappa Madar Alias ... on 25 November, 2024

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                                                           NC: 2024:KHC-D:17256
                                                        RSA No. 101552 of 2022




                                  IN THE HIGH COURT OF KARNATAKA,
                                          DHARWAD BENCH

                             DATED THIS THE 25TH DAY OF NOVEMBER, 2024

                                               BEFORE

                              THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                                 RSA NO. 101552 OF 2022 (PAR/POS)

                        BETWEEN:

                        1.    GALEWWA W/O. DURUGAPPA MADAR
                              @ MYAGERI,
                              AGE: 79 YEARS, OCC. NIL,
                              R/O. JOYISARAHARALALLI,
                              TQ. RANEBENNUR,
                              DIST. HAVERI-581115.

                              BASAPPA S/O. DURUGAPPA MADAR @ MYAGERI,
                              SINCE DIED ON 22-10-2017 BY LRS.,

                        2.    GANGAWWA W/O. BASAPPA MADAR @ MYAGERI,
                              AGE: 53 YEARS, OCC. HOUSEHOLD,
           Digitally

VISHAL
           signed by
           VISHAL
           NINGAPPA
           PATTIHAL
                              R/O. JOYISARAHARALALLI,
NINGAPPA
PATTIHAL   Date:
           2024.11.28
           10:19:52
                              NOW AT TIRUMALADEVARKOPPA,
           +0530

                              TQ. RANEBENNUR,
                              DIST. HAVERI-581115.

                        3.    MANJAWWA W/O. KARIYAPPA KADEMANI,
                              AGE: 36 YEARS, OCC. COOLIE,
                              R/O. TIRUMALADEVARKOPPA,
                              TQ. RANEBENNUR, DIST. HAVERI-581115.

                        4.    GUTTEPPA S/O. BASAPPA MADAR @ MYAGERI,
                              AGE: 34 YEARS, OCC. COOLIE,
                              R/O. JOYISARAHARALALLI,
                              NOW AT TIRUMALADEVARKOPPA,
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                                  RSA No. 101552 of 2022




     TQ. RANEBENNUR,
     DIST. HAVERI-581115.

5.   KOTRESH S/O. BASAPPA MADAR @ MYAGERI
     AGE: 32 YEARS, OCC. COOLIE,
     R/O. JOYISARAHARALALLI,
     NOW AT TIRUMALADEVARKOPPA,
     TQ. RANEBENNUR, DIST. HAVERI-581115.

6.   GALEWWA W/O. GUDDAPPA MALLADAD,
     AGE: 30 YEARS, OCC. COOLIE,
     R/O. DEVAGIRI,
     TQ. AND DIST. HAVERI-581110.

7.   RAMAPPA S/O. DURUGAPPA MADAR @ MYAGERI,
     AGE: 50 YEARS, OCC. AGRICULTURE,
     R/O. JOYISARAHALALLI,
     TQ. RANEBENNUR, DIST. HAVERI-581115.

8.   RANGAPPA S/O. DURUGAPPA MADAR
     @ MYAGERI,
     AGE: 54 YEARS, OCC. AGRICULTURE,
     R/O. JOYISARAHARALALLI,
     TQ. RANEBENNUR, DIST. HAVERI-581115.

9.  SMT. HIRIYEWWA W/O. HANUMAPPA MADAR
    @ MYAGERI,
    AGE: 39 YEARS, OCC. COOLIE,
    R/O. KADARMANDALAGI,
    TQ. BYADAGI, DIST. HAVERI-581106.
                                      ... APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)

AND:

     TIRAKAPPA S/O. NEELAPPA MADAR @ MYAGERI
     SINCE DECEASED BY LRS.,

1.   BASAVVA @ BASAMMA W/O. TIRAKAPPA MADAR
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                                  NC: 2024:KHC-D:17256
                               RSA No. 101552 of 2022




     @ MYAGERI,
     AGE: 71 YEARS, OCC. HOUSEHOLD,
     R/O. JOYISARAHARALAHALLI,
     TQ. RANEBENNUR, NOW AT MALLAHALLI,
     TQ. SHIKARIPUR, DIST. SHIVAMOGA-577427.

2.   NAGAVVA W/O. GUDDAPPA MADAR @ MYAGERI,
     AGE: 56 YEARS, OCC. COOLIE,
     R/O. BALAMBIDA, TQ. HIREKERUR,
     DIST. HAVERI-581111.

3.   GUTTEVVA @ KUSUMA W/O. NAGARAJ MADAR
     @ MYAGERI,
     AGE: 50 YEARS, OCC. COOLIE,
     R/O. BHADRAPUR, TQ. RANEBENNUR,
     NOW AT MALLAHALLI,
     TQ. SHIKARIPUR,
     DIST. SHIVAMOGGA-577427.

4.   MANJAPPA S/O. TIRAKAPPA MADAR @ MYAGERI,
     AGE: 39 YEARS, OCC. AGRICULTURE,
     R/O. JOYISARAHARALAHALLI,
     TQ. RANEBENNUR,
     NOW AT MALLAHALLI, TQ. SHIKARIPUR,
     DIST. SHIVAMOGGA-577427.

5.   NEELAVVA W/O. SHIVAPPA MADAR,
     AGE: 49 YEARS, OCC. COOLIE,
     R/O. BALAMBIDA, TQ. HIREKERUR,
     DIST. HAVERI-581111.

6.   BALAWWA @ BHAGYAMMA
     W/O. SHIDLAPPA MUGALANNAVAR,
     AGE: 62 YEARS, OCC. COOLIE,
     R/O. N.K.ROAD, A.K.COLONY,
     7TH CROSS, SANNA HANUMAJJANA MANE,
     HARIHAR, TQ. HARIHAR,
     DIST. DAVANGERE-577601.
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                                  RSA No. 101552 of 2022




7.   MARIYAMMA W/O. NAGAPPA BISHTANNAVAR,
     AGE: 58 YEARS, OCC. COOLIE,
     R/O. SARAWAD, TQ. RANEBENNUR,
     DIST. DAVANAGERE-577601.

8.  NAGAPPA S/O. DURGAPPA BISHTANNAVAR,
    AGE: 62 YEARS, OCC. COOLIE,
    R/O. JOYISARAHARARAHALLI, TQ. RANEBENNUR,
    DIST. HAVERI-581115.
                                    ... RESPONDENTS
(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R1 TO R7;
NOTICE TO R8 IS DISPENSED WITH)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,.
AGAINST THE JUDGMENT AND DECREE DATED 01.01.2018
PASSED IN R.A.NO.20/2016 ON THE FILE OF PRINCIPAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS,    RANEBENNUR       AT    RANEBENNUR,     PARTLY
ALLOWING    THE   APPEAL   AND    SETTING   ASIDE   THE
JUDGMENT AND DECREE DATED 23.01.2016 PASSED IN
O.S. NO.163/2011 ON THE FILE OF THE ADDITIONAL
CIVIL JUDGE AND II ADDITIONAL JUDICIAL MAGISTRATE
FIRST CLASS, RANEBENNUR, DECREEING THE SUIT FILED
FOR SUIT FOR PARTITION AND SEPARATE POSSESSION.


     THIS APPEAL, COMING ON FOR FURTHER ORDERS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:


CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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                                        NC: 2024:KHC-D:17256
                                     RSA No. 101552 of 2022




                       ORAL JUDGMENT

The present regular second appeal is accompanied

with I.A. No.1/2022 filed seeking to condone the delay of

971 days in filing the appeal.

2. The affidavit of I.A. No.1/2022 is filed by

Rangappa S/o. Durugappa-appellant No.8 herein. The

reasons Stated in the affidavit at para Nos.4 and 5 are

culled out as under:

"4. I submit that the Appellants are uneducated and poor persons due to financial constraints they could not arrange to file the appeal intime. At the same time there was spread of Covid 19 virus and the public activities were stopped. Also the Hon'ble Apex court has issued direction in Suo Motu W.P No. 3/2020 to excude the time 15-03-2020 to 28-02- 2022 to exclude period from computation of the limitation.

5. In this process there is a delay of 971 days in filing the Appeal. The dealy caused is neither deliberate nor intentional. The Respondents all the way have not disputed my claim, hence if the delay is condoned no loss or hardship will be caused to them."

3. The reasons stated by the appellants is that

they are uneducated, poor persons and due to financial

constraints they could not arrange to file the appeal in

NC: 2024:KHC-D:17256

time, further, there was Covid-19 Pandemic, and the

public activities were stopped in light of the SOP

directions, hence, they could not prefer the appeal in

time.

4. Objections are filed to the application by the

respondents contending that the appellants have not made

out sufficient grounds to condone the delay and sought for

dismissal of the application.

5. 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?"

6. 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

NC: 2024:KHC-D:17256

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.

7. 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

NC: 2024:KHC-D:17256

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.

8. 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

NC: 2024:KHC-D:17256

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, howsoever 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.

9. 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 of not few days but inordinate delay of 971 days,

Section 5 of the Limitation Act, prescribes certain period

for filing an appeal, substantial right is already been

created in favour of the decree holders herein and this

right ought not to be lightly disturbed, the decree holders

have already created a decree in their favour by lapse of

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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.

10. 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

discretion in a systematic and in informed manner. The

AIR 1962 SC 361

(2011) 4 SCC 363

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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

as it stands and they have no power to condone the delay

(2013) 14 SCC 81

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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 time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory

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provisions and it tantamounts to showing utter disregard to the legislature."

11. 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 cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

2024 SCC Online SC 513

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(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."

12. 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

explanation of each day's delay should not be taken

2023 live law (SC) 69

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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 or part, as the case may be, of such court-fee, and upon such payment the document, in respect of which

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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."

13. The appellants have not made out any ground

to condone the delay of 971 days in preferring the appeal.

Despite there being a delay of 971 days, this Court has

considered the matter on merits, to see that no injustice is

done to the party. Perusal of the judgment and decree of

the Courts below indicate that the Courts below arrived at

a conclusion that the plaintiff is entitled for share in the

suit property. The defendants before the Court contested

the suit and the trial court decreed the suit holding that

the plaintiff is entitled for notional partition. In the appeal

preferred by defendants, the First Appellate court arrived

at a conclusion that the plaintiff is entitled for equal share