Karnataka High Court
Bannappa S/O Tammanna Polemannanour vs Mallayya S/O Bannappa Palimani And Anr on 1 February, 2025
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NC: 2025:KHC-K:736
WP No. 201101 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
WRIT PETITION NO.201101 OF 2022 (GM-CPC)
BETWEEN:
BANNAPPA
S/O TAMMANNA POLEMANNANOUR,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE BALICHAKKAR,
TQ. AND DIST. YADGIRI.
...PETITIONER
(BY SRI. PRADEEP KUMAR, ADVOCATE)
AND:
1. MALLAYYA
S/O BANNAPPA PALIMANI,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE BALICHAKKAR,
Digitally signed TQ. AND DIST. YADGIRI-585201.
by SACHIN
Location: High 2. HANMANTHA
Court Of
Karnataka S/O MALLAYYA PALIMANI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE BALICHAKKAR,
TQ. AND DIST. YADGIRI-585201.
...RESPONDENTS
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI ANY OTHER WRIT OR DIRECTION TO QUASH THE
IMPUGNED ORDER DATED 22.02.2022 WHEREBY AN INORDINATE
DELAY IN PREFERRING A REGULAR APPEAL WAS CONDONED IN
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NC: 2025:KHC-K:736
WP No. 201101 of 2022
MISC.NO.07/2021 PASSED BY COURT OF SENIOR CIVIL JUDGE,
YADGIRI IS AT ANNEXURE-E.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R.NATARAJ
ORAL ORDER
The respondent in Misc.No.7/2021 on the file of the
Senior Civil Judge, Yadgiri (henceforth referred to as 'First
Appellate Court') is before this Court challenging an order
dated 22.02.2022 by which, it allowed an application filed
by him under Section 5 of the Limitation Act, 1963 and
condoned the delay in filing the appeal subject to payment
of cost Rs.5,000/-.
2. A suit in O.S.No.75/2013 was filed for
declaration of title and for perpetual injunction restraining
defendants/respondents herein from interfering with
possession of the plaintiff/petitioner herein in the suit
property. The suit property was an open plot measuring 30
ft. x 80 ft. of Balichakkar village. The said suit after
contest was decreed on 18.08.2017.
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3. The petitioner herein alleging violation of the
judgment and decree for perpetual injunction filed
Ex.No.7/2018 for recovery of possession of the suit
property. The executing Court issued a delivery warrant
along with police help on 04.09.2020. The respondents
herein, who were the judgment debtors, thereafter filed a
regular appeal along with an application for condonation of
delay in filing the appeal. The application for condonation
of delay was numbered as Misc.No.7/2021.
4. The First Appellate Court recorded the evidence
of respondents herein and after finding that the reason for
not filing an appeal in time was probable and also having
regard to the relief sought for in the decree, it condoned
the delay of 765 days in filing the appeal by the impugned
order.
5. Being aggrieved by the same, the petitioner is
before this Court.
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6. The learned counsel for the petitioner contends
that the respondents had appeared in the execution
petition in person and therefore, was well aware of the
decree passed and hence, must have filed the appeal in
time.
7. However, the learned counsel for the
respondents contends that the respondents were poor and
could not afford the cost of litigation and hence, they could
not file the appeal in time. He submits that since the
judgment and decree was for delivery of possession of the
suit property, the respondents were advised to file an
appeal though belatedly. Hence, belated appeal was filed.
He submitted that but for the financial stringency, the
respondents would have filed the appeal in time.
8. In reply, the learned counsel for the petitioner
contended that if the respondents were not in a position to
meet the expenses of the litigation, they must have taken
the help of the Legal Services Authority. The learned
counsel for the petitioner relied upon the judgment of
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Hon'ble Supreme Court in the case of Esha
Bhattacharjee vs. Managing Committee of
Raghunathpura Nafar Academy and others [(2013)
12 SCC 649] and contended that the Court should not be
liberal in condoning the delay but must be circumspect
about the reasonableness of the reason mentioned for
condonation of delay.
9. I have considered the submission of the learned
counsel for the petitioner and the learned counsel for the
respondent.
10. The judgment and decree was one for
declaration of title and for recovery of possession of an
open plot. The suit was decreed after contest. An
execution petition was filed in which, the executing Court
issued a delivery warrant with police help. It is only
thereafter, that the respondents woke up and filed a
belated appeal. An application was filed for condonation of
delay on the ground that they could not file the appeal in
time due to their financial condition as they could not meet
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the expenses of litigation. The contention urged by the
respondents herein was not unbelievable but was probable
and therefore, the First Appellate Court was justified in
allowing the application for condonation of delay by
imposing cost of Rs.5,000/-. It is true that a party seeking
condonation of delay is bound to establish justifiable
reason for every day's delay, but if the respondents herein
are facing financial hardship, it is impossible for them to
establish the same through documentary evidence.
Therefore, the First Appellate Court was justified in
condoning the delay and hence, the same does not
warrant any interference.
11. Consequently, this writ petition lacks merit and
is dismissed.
Sd/-
(R.NATARAJ)
JUDGE
PMR
