Karnataka High Court

Sri Srivatsan vs State Of Karnataka on 14 February, 2025

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                                                             WP No. 21651 of 2024
                                                         C/W WP No. 20864 of 2024



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 14TH DAY OF FEBRUARY, 2025

                                                BEFORE
                              THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
                              WRIT PETITION NO. 21651 OF 2024 (SCST)
                                                  C/W
                              WRIT PETITION NO. 20864 OF 2024 (SCST)


                      IN WP No. 21651/2024

                      BETWEEN:

                      1.    SRI. SRIVATSAN
                            SON OF R. SHESHADRI,
                            AGED ABOUT 51 YEARS,
                            RESIDING AT GF-7,
                            AJANTHA ENCLAVE,
                            NO.5, 3RD CROSS, 2ND MAIN,
                            HANUMAGIRI LAYOUT,
                            CHIKKALASANDRA,
Digitally signed by         BANGALORE-560 061.
MAHALAKSHMI B M
Location: HIGH
COURT OF              2.    SRI. VENU. C. S.
KARNATAKA                   SON OF LATE C. P. SRINIVASA,
                            AGED ABOUT 46 YEARS,
                            RESIDING AT NO. 85,
                            2ND CROSS, A BLOCK,
                            SRI. KRISHNA GARDENS,
                            R.V. NIKETAN P.O.,
                            RAJARAJESHWARI NAGAR,
                            BANGALORE-560 059.

                      3.    SRI. J. MANJUNATH SINGH
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     SON OF SRI. R. JAGANNATH SINGH,
     AGED ABOUT 44 YEARS,
     RESIDING AT NO. 84,
     PRABHA NILAYA,
     2ND CROSS, A BLOCK,
     KRISHNA GARDEN,
     PATTANAGERE
     RAJARAJESHWARI NAGAR,
     BANGALORE-560 059.

4.   SRI. N. RAMESH
     SON OF LATE M. NAGARAJ,
     AGED ABOUT 45 YEARS.

5.   SMT. P. RASHMI
     WIFE OF N. RAMESH,
     AGED ABOUT 42 YEARS.

     PETITIONERS NO. 4 AND 5 ARE
     RESIDING AT NO. 83, 2ND CROSS,
     KRISHNA GARDEN LAYOUT,
     A BLOCK, BANGALORE-560 059.

6.   SRI. JAGADISH. T. A.
     SON OF SMT. YASHODA,
     AGED ABOUT 40 YEARS.

7.   SMT. SHWETHA SRINATH
     WIFE OF SRI. JAGADISH. T. A.,
     AGED ABOUT 37 YEARS.

     PETITIONER NOS. 6 AND 7 ARE
     RESIDING AT NO. 82,
     2ND CROSS,
     A BLOCK, KRISHNA GARDEN,
     R.R. NAGAR,
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     BANGALORE-560 059.

     BOTH ARE REPRESENTED BY THEIR POWER OF
     ATTORNEY HOLDER,
     SMT. YASHODA. H. V.,
     WIFE OF LATE VENKATARAO,
     RESIDING AT NO. 82,
     2ND CROSS ROAD,
     'A' BLOCK, SRI. KRISHNA GARDEN,
     R.R. NAGAR,
     BANGALORE-560 059.

8.   SRI. PRADEEP MYSORE SURESH
     SON OF LATE SURESH. M. S.,
     AGED ABOUT 42 YEARS,
     RESIDING AT NO. 97,
     1ST CROSS, BAGEGOWDA LAYOUT,
     KRISHNA GARDEN, 'A' BLOCK,
     PATTANAGERE,
     BANGALORE-560 059.
                                           ...PETITIONERS
(BY SRI. CHETAN DESAI, ADVOCATE)

AND:

1.   STATE OF KARNATAKA
     REPRESENTED BY ITS REVENUE SECRETARY,
     VIDHANA SOUDHA,
     AMBEDKAR VEEDHI,
     BANGALORE-560 001.

2.   THE DEPUTY COMMISSIONER
     BANGALORE URBAN DISTRICT,
     BANGALORE - 560 009.
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3.   THE ASSISTANT COMMISSIONER
     BANGALORE SOUTH SUB-DIVISION,
     K.G. ROAD,
     BANGALORE - 560 009.

     SMT. NARASAMMA (SINCE DEAD)
     WIFE OF LATE BYRAPPA
     REPRESENTED BY HER GRAND CHILDREN
     THROUGH GPA HOLDER,

4.   SRI. GANGADHARA
     SON OF LATE MUNIBYRAPPA,
     AGED ABOUT 32 YEARS.

5.   SRI. NAGARAJ
     SON OF LATE MUNIBYRAPPA,
     AGED ABOUT 23 YEARS.

     SRI. UMASHANKAR (SINCE DEAD)
     BY HIS LEGAL REPRESENTATIVES,

6.   SMT. S. R. RAJESHWARI
     WIFE OF LATE UMASHANKAR,
     AGED ABOUT 44 YEARS.

7.   TEJASWINI. U
     DAUGHTER OF LATE UMASHANKAR,
     AGED ABOUT 24 YEARS.

8.   SRI. SRUJAN. U
     SON OF LATE UMASHANKAR,
     AGED ABOUT 20 YEARS,

     RESPONDENT NO.4 TO 8 ARE ALL
     RESIDING AT NO. 85,
     (NEW NO. 127),
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     1ST CROSS, PATTANAGERE VILLAGE,
     RAJARAJESHWARI NAGAR,
     BANGALORE-560 098.

9.   SRI. G. SATISH
     SON OF D. R. GUNDURAJ,
     AGED ABOUT 52 YEARS,
     RESIDING AT NO. 64,
     1ST CROSS, NEHRUNAGAR,
     BANGALORE-560 020.

10. SRI. G. GANGADHAR
    SON OF GANGAPPA,
    AGED ABOUT 5 YEARS,
    RESIDING AT PATTANAGERE VILLAGE,
    KENGERI HOBLI,
    BANGALORE SOUTH TALUK - 560 098.

11. SRI. ANUP KUMAR @ ANUP SHARMA
    SON OF RAMGOPAL,
    AGED ABOUT 52 YEARS,
    RESIDING AT NO. 15,
    SINGAPURA LAYOUT,
    H.T. LANE, BEML 5TH STAGE,
    RAJARAJESHWARINAGARA,
    BANGALORE-560 098.

12. SMT. T. R. KAVITHA
    WIFE OF M. V. LAKSHMAN,
    AGED ABOUT 55 YEARS,
    RESIDING AT NO. 27,
    5TH MAIN, R. K. LAYOUT,
    K.G. NAGAR,
    BANGALORE-560 026.
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13. SMT. SUMA KRISHNAMURTHY
    WIFE OF SRI. KRISHNAMURTHY,
    AGED ABOUT MAJOR,
    RESIDING AT NO. 122,
    KRISHNA GARDEN,
    PATANAGERE,
    RAJARAJESHWARI NAGAR,
    BANGALORE-560 098.

14. SMT. S. SUNANDA
    WIFE OF S. L. NAGARAJASHETTY,
    AGED ABOUT 60 YEARS,
    RESIDING AT NO. 1229/A,
    17TH MAIN, 5TH CROSS,
    MUNESHWARA BLOCK,
    BANGALORE-560 026.

15. SRI. G. GIRIYAPPA
    SON OF LATE GIRI GOWDA,
    AGED ABOUT 77 YEARS,
    RESIDING AT NO. 1040, 13TH MAIN,
    SRINAGAR, BANGALORE - 560 050.

16. SMT. V. SARASWATHI
    WIFE OF SRI SHIVARAMEGOWDA,
    AGED ABOUT 50 YEARS,
    RESIDING AT HOUSE NO. G-1,
    CHAITRA NILAYA, K S R T C LAYOUT,
    CHIKKALLASANDRA,
    BANGALORE - 560 061.

17. SRI. M. RAVI
    SON OF SRI MAREGOWDA,
    AGED ABOUT 54 YEARS,
    RESIDING AT NO. 3, 25TH MAIN,
    BSK 1ST STAGE, 1ST BLOCK,
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    BANGALORE - 560 050

18. SRI. SATHISHA B R
    SON OF RAJAPPA,
    AGED ABOUT 52 YEARS.

19. SMT. CHAITRA SATHISH
    WIFE OF SRI. SATHISH B R
    AGED ABOUT 45 YEARS,

    RESPONDENTS NO.18 AND 19 ARE
    RESIDING AT NO. 2 AND 6,
    1ST MAIN ROAD, SAPATHAGIRI RESIDENCY,
    MUTHURAYANAGAR, MYSORE ROAD,
    BANGALORE - 560 059

20. SRI. SRINIVAS M S
    SON OF SRI M V SUBRAMANYAM,
    AGED ABOUT 58 YEARS,
    RESIDING AT NO. 22, 3RD CROSS,
    A BLOCK, SRI KRISHNA GARDENS, R R NAGAR,
    BANGALORE 560 059.

21. SMT. S. MALATHI
    WIFE OF SRINIVAS M S,
    AGED ABOUT 51 YEARS,
    RESIDING AT NO. 22, 3RD CROSS,
    A BLOCK, SRI KRISHNA GARDENS,
    R R NAGAR, BANGALORE - 560 059.

22. SMT. G. SUGANDHI
    WIFE OF SRI. GOVINDARAJ,
    AGED ABOUT 67 YEARS,
    RESIDING AT NO. 24, 3RD CROSS,
    A BLOCK, SRI KRISHNA GARDENS,
    R R NAGAR, BANGALORE - 560 059
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23. MISS. G. SRINITHYA
    DAUGHTER OF SRI GOVINDARAJ,
    AGED ABOUT 43 YEARS,
    RESIDING AT NO. 24, 3RD CROSS,
    A BLOCK, SRI KRISHNA GARDENS,
    R R NAGAR, BANGALORE - 560 059

24. SRI. V. SURESH
    SON OF SRI. VENKATADRI,
    AGED ABOUT 68 YEARS,
    RESIDING AT NO. 116, 5TH CROSS,
    7TH MAIN, AVALAHALLI BDA LAYOUT,
    BANASHANKARI 3RD STAGE,
    BANGALORE - 560 085.
                                          ...RESPONDENTS
(BY SRI. YOGESH D NAIK, AGA FOR R1 -R3;
    SRI. L.M. SOWRABA JEEVALA, ADVOCATE FOR R4-R8;
    SRI. H.S. SOMANATH, ADVOCATE FOR R24;
    R12, R14, R16, R20, R21, R22, R23 - SERVED AND
    UNREPRESENTED;
    V/O/D 13.02.2025, PETITION STAND ABATED
    AGAINST R15;
    V/O/D 13.02.2025 NOTICE TO R9 TO R11-R13 AND
    R17 TO R19 - D/W)

    THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO A) CALL FOR
RECORDS OF IN CASE NO. SC/ST(A)7/2004-05 PENDING ON
THE FILE OF 2ND RESPONDENT-DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT, BANGALORE AND ETC.
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                                    WP No. 21651 of 2024
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IN WP NO. 20864/2024

BETWEEN:

1.   SRINIVAS M. S.
     S/O M.V. SUBRAMANYAM,
     AGED ABOUT 58 YEARS,
     R/AT NO.22, 3RD CROSS, A BLOCK,
     SRI KRISHNA GARDENS, RR NAGAR,
     BANGALORE - 560059.

2.   SMT. S. MALATHI,
     W/O SRINIVAS MS,
     AGED ABOUT 51 YEARS,
     R/AT NO.22, 3RD CROSS, A BLOCK,
     SRI KRISHNA GARDENS, RR NAGAR,
     BANGALORE - 560059.

3.   G. SUGANDHI
     W/O GOVINDARAJ,
     AGED ABOUT 67 YEARS,
     R/AT NO.24, 3RD CROSS, A BLOCK,
     SRI KRISHNA GARDENS, RR NAGAR,
     BANGALORE - 560059.

4.   MISS. G. SRINITHYA
     D/O GOVINDARAJ,
     AGED ABOUT 43 YEARS,
     R/AT NO.24, 3RD CROSS, A BLOCK,
     SRI KRISHNA GARDENS, RR NAGAR,
     BANGALORE - 560059.
                                       ...PETITIONERS

(BY SRI. MAHESH M., ADVOCATE)
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AND:

1.   THE DEPUTY COMMISSIONER (BENGALURU URBAN )
     KEMPEGOWDA ROAD, BEHIND KANDAYA BHAVANA,
     BENGALURU URBAN DISTRICT,
     BENGALURU - 560 009.

2.   GANGADHARA
     S/O LATE MUNIBHYRAPPA,
     AGED ABOUT 32 YEARS.

3.   NAGARAJ
     S/O LATE MUNIBHYRAPPA,
     AGED ABOUT 23 YEARS.

4.   S.R. RAJESHWARI
     W/O LATE UMASHANKAR,
     AGED ABOUT 44 YEARS.

5.   TEJASWINI U
     D/O LATE UMASHANKAR,
     AGED ABOUT 24 YEARS

6.   SRUJAN U
     S/O LATE UMASHANKAR,
     AGED ABOUT 20 YEARS.

     RESPONDENTS NOS. 2 TO 6
     ALL ARE RESIDING AT NO.85 (NEW NO.127),
     1ST CROSS, PATTANAGERE VILLAGE,
     RAJARAJESHWARI NAGAR,
     BENGALURU - 560 098.

7.   G. SATISH,
     S/O D.R. GUNDURAJ,
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     AGED ABOUT 52 YEASR,
     RESIDING AT NO.64, 1ST CROSS,
     NEHRUNAGAR, BANGALORE - 20

8.   G. GANGADHAR
     S/O GANGAPPA,
     AGED ABOUT 45 YEARS,
     RESIDING AT NO. AT PATTANAGERE VILLAGE,
     KENGERI HOBLI,
     BANGALORE SOUTH TALUK.

9.   SRI. ANUP KUMAR @ ANUP SHARMA
     S/O RAMGOPAL,
     AGED ABOUT 52 YEARS,
     RESIDING AT NO.15, SINGAPURA LAYOUT,
     H.T.LANE, BEML 5TH STAGE,
     RAJARAJESHWARINAGARA
     BENGALURU - 560098.

10. SMT. T.R. KAVITA
    W/O M.V. LAKSHMAN
    AGED ABOUT 55 YEARS,
    RESIDING AT NO.27, 5TH MAIN, R.K.LAYOUT,
    K.G.NAGAR BENGALURU - 560026.

11. SMT. SUMA KRISHNAMURTHY
    W/O KRISHNAMURTHY
    AGE MAJOR
    RESIDING AT NO.122, KRISHNA GARDEN,
    PATTANAGERE, RAJARJESHWARINAGAR
    BENGALURU - 560098.

12. SMT. S SUNANDA
    W/O S L NAGARAJASHETTY,
    AGED ABOUT 60 YEARS,
    RESIDING AT NO. 1229/A, 17TH MAIN,
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    5TH CROSS, MUNESWARA BLOCK,
    BENGALURU - 560026.

13. SRI. G. GIRIYAPPA
    S/O LATE GIRI GOWDA,
    AGED ABOUT 77 YEARS,
    RESIDING AT NO.100, 13TH MAIN,
    SRINAGAR, BENGALURU - 560050.
14. SMT. V. SARASWATHI
    W/O SRI M SHIVARAMEGOWDA,
    AGED ABOUT 50 YEARS
    RESIDING AT HOUSE NO.G-1
    CHAITRA NILAYA K.S.R.T.C. LAYOUT,
    CHIKKALLASANDRA,
    BANGALORE - 560061

15. SRI. M. RAVI
    S/O SRI MAREGOWDA,
    AGED ABOUT 54 YEARS,
    RESIDING AT NO. 3, 25TH MAIN,
    BSK I STAGE, I BLOCK,
    BENGALURU - 560050.

16. SRI. SATHISHA B R
    S/O SRI RAJAPPA,
    AGED ABOUT 52 YEARS,
    RESIDING AT NO.2 AND 6,
    1ST MAIN ROAD, SAPATHAGIRI RESIDENCY,
    MUTHURAYANAGAR, MYSORE ROAD,
    BANGALORE - 560059.

17. SMT. CHAITHRA SATHISH
    W/O SRI SATHISH B R,
    AGED ABOUT 45 YEARS

    RESIDING AT NO.2 AND 6,
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    1ST MAIN ROAD, SAPATHAGIRI RESIDENCY,
    MUTHURAYANAGAR, MYSORE ROAD,
    BANGALORE - 560059.

18. SRI. S. SRIVATSAN
    S/O R SESHADRI,
    AGED ABOUT 51 YEARS,
    RESIDING AT GF-7
    AJANTHA ENCLAVE, NO.5, 3RD CROSS,
    2ND MAIN, HANUMAGIRI LAYOUT
    CHIKKALASNADRA,
    BENGALURU - 560061.

19. SRI. VENU C S
    S/O LATE C P SRINIVAS,
    AGED ABOUT 46 YEARS,
    NO.85,
    2ND CROSS, A BLOCK SRI KRISHNA GARDENS
    R.V. NIKETAN P O RAJARAJESHWARI NAGAR
    BANGALORE - 59.

20. SRI. V. SURESH
    S/O VENKATADRI,
    AGED ABOUT 68 YEARS,
    RESIDING AT NO. 116, 5TH CROSS,
    7TH MAIN, AVALAHALLI BDA LAYOUT
    BANASHANKARI 3RD STAGE,
    BENGALURU - 560085.

21. SRI. J. MANJUNATH SINGH
    S/O SRI. R. JAGANNATH SINGH
    AGED ABOUT 44 YEARS,
    RESIDING AT NO.84, PRABHA NILAYA,
    2ND CROSS, A BLOCK, KRISHNA GARDEN,
    PATTANAGERE, RAJARAJESHWARI NAGAR
    BENGALURU - 560059
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22. SRI. N. RAMESH,
    LATE M NAGARAJ,
    AGED ABOUT 45 YEARS,

23. SMT. P RASHMI
    W/O N RAMESH,
    AGED ABOUT 42 YEARS

    RESPONDENT NOS.22 AND 23
    RESIDING AT NO. 83,
    2ND CROSS, KRISHNAGARDEN LAYOUT,
    A BLOCK, BENGALURU - 560059.

24. SRI JAGADISH T A
    S/O SMT. YASHODA
    AGED ABOUT 40 YEARS

25. SMT. SWETHA SRINATH
    W/O SRI JAGADISH T A
    AGED ABOUT 37 YEARS

    RESPONDENT NOS.24 AND 25 ARE
    RESIDING AT NO. 82, 2ND CROSS,
    A BLOCK, KRISHNA GARDEN,
    R.R.NAGAR
    BENGALURU - 560059

    BOTH ARE REPRESENTED BY THEIR POWER OF
    ATTORNEY HOLDER
    SMT. YASHODA H V
    D/O LATE VENKTARAO,
    RESIDING AT NO.82, 2ND CROSS,
    A BLOCK, KRISHNA GARDEN,
    R R NAGAR, BENGALURU - 560059.
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26. SRI. PRADEEP MYSORE SURESH
    S/O LATE SURESH M S
    AGED ABOUT 42 YEARS,
    RESIDING AT NO.97, 1ST CROSS,
    BAGEGOWA LAYOUT, KRISHNA GARDEN, A BLOCK,
    PATTANAGERE,
    BENGALURU - 560059.
                                  ...RESPONDENTS

(BY SRI. YOGESH D NAIK, AGA FOR R1;
    SRI. L.M. SOWRABA JEEVALA, ADVOCATE FOR
    R2 TO R6;
    V/O/D 27.08.2024, NOTICE TO R7 TO R26 D/W)

    THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 01.04.2024, ALLOWING THE INTERIM
APPLICATION UNDER SEC 5 OF LIMITATION ACT AND
THEREBY ADMITTING THE APPEAL BY CONDONING THE
DELAY OF 19 YEARS (ANNEXURE-A) PASSED BY THE R-1 IN
KSC.ST(A)NO. 7/2004-05, UNDER SEC 5A OF THE
KARNATAKA SCHEDULE CASTE AND SCHEDULE TRIBES
(PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT,
1978 AND CONSEQUENTLY DISMISS THE APPEAL AND ETC.



     THESE   PETITIONS,   COMING      ON   FOR   PRELIMINARY

HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE

THEREIN AS UNDER:

CORAM:   HON'BLE MRS JUSTICE K.S. HEMALEKHA
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                                              WP No. 21651 of 2024
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                             ORAL ORDER

The petitioner has called in question the order passed

by respondent No.2-Deputy Commissioner, wherein by the

impugned order the Deputy Commissioner has allowed the

application filed by respondent No.4 and condoned the

delay of 19 years in preferring the appeal.

2. Brief facts of the case are that one Narsamma

had conveyed the land bearing Sy.No.11/4 measuring 2

acres in favour of respondent No.9. The application came

to be filed by Narasamma before the Assistant

Commissioner seeking restoration into her name in the

year 1981. The Assistant Commissioner dropped the

proceedings on 08.04.1985. The land was converted from

agricultural to non-agricultural residential use. The

respondent No.9 sold the land with other lands in favour of

one Ravishankar by way of a registered sale deed and

Ravishankar had formed a residential layout in the land

and sold the same in favour of the petitioners and others

vide registered sale deeds. The Legal representatives of

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Narasamma preferred an appeal before the Deputy

Commissioner challenging the order passed in the petition

filed by Narasamma, which was rejected by the Assistant

Commissioner on 08.04.1985. The Deputy Commissioner

dismissed the appeal on the ground of delay. The legal

representatives of deceased Narasamma preferred writ

petition before this court in W.P.No.29522/2004. This

court allowed the application filed by the legal

representatives of late Narasamma and ordered for

restoration of the land in favour of the legal heirs.

Aggrieved, the respondent No.9 preferred an appeal in

W.A.No.15327/2011 and Ravishankar also preferred the

writ appeal in W.A.No.16806/2011 challenging the order of

the learned Single Judge. The division bench of this court

directed the Deputy Commissioner to consider the

application for delay on merits and pass appropriate

orders. The Deputy Commissioner by impugned order

allowed the application filed under Section 5 of the

Limitation Act by the legal representatives of deceased

Narasamma and condoned the delay of 19 years in filing

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the appeal, aggrieved by which the petitioners are before

this court in this petition.

3. The petitioners are purchasers of the different

plots in the land and were impleaded in the proceedings

before the Deputy Commissioner. The application filed by

the legal representatives of late Narasamma was to

condone the delay in preferring the appeal accompanied

with the application filed under Section 5 of the Limitation

Act, the affidavit of one Umashankar was filed, stating at

para 2 and 3 as under;

"2. I submit that the accompanying application has been submitted praying this Hon'ble court to kindly condone the delay in preferring this appeal. We have got very good case in this appeal. I submit that the original grantee in respect of the land in question is our grand mother Smt.Narasamma and she died without getting the knowledge of the further proceedings before the third respondent Asst. Commissioner and our grand mother Narasamma without knowing anything about the proceedings in this case at the later stages,

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she died. I submit that I and the appellants 1 and 2 were small boys time when the impugned order in case No.KSC ST 104/79-80 was passed and after our education we came and settled in the village and 10 days ago we came across a copy of the order of the third respondent Assistant Commissioner and immediately we started taking steps and even though we filed application for the issue of certified coy of the impugned order the authorities have issued the endorsement stating that the said records including the impugned order are not available in the office of the third respondent Assistant Commissioner and even in respect of saguvali chit also requesting for the certified copy of the same has been issued stating that the said records are also not available in the office. Having produced the said endorsement with the copy of the order which was found at home are produced.

3.. I submit that the delay that has occurred in filing the present appeal is due to bonafide reason and it is not intentional and in fact the non availability of the records is due to the strategy and the trick played by the

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respondents 1 and 2 in order to keep us in dark and hence due to the said bonafide reasons and due to the fact that we have good case on merits in this appeal and the intention of legal proceedings is to do ultimate justice. I pray this Hon'ble court to allow the accompanying application in the interest of justice and equity. The respondents will not be put to any hardship if the application is allowed."

4. The reasons assigned to condone the delay of

19 rears was on the ground that the original grantee i.e.,

the grandmother of the applicants viz., Narasamma died

during the pendency of the petition before the Assistant

Commissioner and the death of Narasamma was not

brought to the notice of the Assistant Commissioner and

as such, the order passed is void and the order is against

a dead person. The objections were filed by the petitioner

to the application inter alia contending the delay of 8 years

10 months as indicated in the application was in fact, the

delay of 19 years, in preferring the appeal. The petitioner

objected the application on the ground that the order

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passed by the Assistant Commissioner was known to the

legal representatives of Narasamma as Munibyrappa, the

son of Narasamma had obtained a copy of the order that

the Munibyrappa was active throughout the proceedings

before respondent No.3 and the impugned order passed by

the Assistant Commissioner was justified. The Deputy

Commissioner while considering the application filed by

the legal representatives of Narasamma arrived at a

conclusion that the order passed is against a dead person

and the delay of 19 years in filing the appeal before the

Deputy Commissioner needs to be condoned.

5. Learned counsel for the petitioner contends and

places on record that the legal representatives of deceased

Narasamma had placed material before the Deputy

Commissioner clearly indicating that Munibyrappa had

obtained the certified copy of the order dated 08.04.1985

on 27.08.1985 itself and Munibyrappa was aware about

the impugned order passed against Narasamma.

Munibyrappa who survived up to 1993 did not choose to

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challenge the order passed against Narasamma and the

applicants who claim to be the legal representatives of

Narasamma are the children of Munibyrappa filing the

appeal challenging the order passed by the Assistant

Commissioner only in the year 2004. This aspect has been

totally overlooked by the Deputy Commissioner and the

impugned order is passed in a casual manner.

6. Per contra, learned counsel appearing for the

respondent - applicants submits that the impugned order

is well considered order and noting that the order of

Assistant Commissioner is against the dead person and the

applicants were unaware about the rejection of the

petition of Narasamma as Narasamma had died on

14.01.1984 and the order passed by the Assistant

Commissioner was on 08.04.1995, which aspect was

rightly considered by the Deputy Commissioner and

condoned the delay in filing the appeal.

7. Having heard the learned counsel for the

parties, the point that arises for consideration is, whether

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the impugned order passed by the Deputy Commissioner

condoning the delay of 19 years needs to be interfered in

the present facts and circumstances of this case?

8. It is undisputed that the deceased Narasamma

filed an application seeking resumption in the year 1978.

It is also not in dispute that Narasamma died on

14.01.1984 and the order passed by the Assistant

Commissioner is on 08.04.1985. What needs to be

considered here is that, Munibyrappa is the only son of

Narasamma and he was prosecuting the matter before the

Assistant Commissioner as is evident from the material

which is placed by the petitioners herein and these

documents were produced by the applicants before the

Deputy Commissioner itself. A perusal of the material on

record clearly indicates that Munibyrappa, the son of

Narasamma filed copying application requesting for the

certified copy of the order dated 08.04.1985 passed by the

Assistant Commissioner. Munibyrappa died in the year

1993, no steps were taken by Munibyrappa to either recall

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the order passed by the Assistant Commissioner dated

08.04.1985 or to file an appeal against the order passed

by the Assistant Commissioner. After the death of

Munibyrappa, nearly after eight years, the present

application is filed to condone the delay of 19 years in

preferring the appeal.

9. It is no doubt a settled proposition of law that

an order passed against a dead person is a nullity.

However, the Deputy Commissioner while condoning the

delay of 19 years in preferring the appeal has not even

whispered about the manner in which Munibyrappa had

conducted himself and had not preferred an appeal and

perusal of the impugned order passed by the Deputy

Commissioner clearly indicates the non-application of mind

while condoning the delay of 19 years in preferring the

appeal. The question that was to be considered by the

Deputy Commissioner is whether there was any bonafide

reasons and sufficient cause made out by the applicant to

prefer an appeal with a delay of 19 years.

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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 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

(1987) 2 SCC 107

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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 2272 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 holder/claimants herein and this right ought not to be lightly disturbed, the claimants have already created a decree in their 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

AIR 1962 SC 361

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"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 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 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

(2011) 4 SCC 363

(2013) 14 SCC 81

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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 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

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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

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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."

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;

2024 SCC Online SC 513

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(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;

(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

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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."

10. Absolutely there is no reasons forthcoming in the

entire order passed by the Deputy Commissioner for

condoning the delay, the approach of the deputy

commissioner in condoning the delay is in a very casual

manner, failing to notice that right would not be available

to a person and who have slept for years, the legal maxim

dura lex sed lex which means "the law is hard but it is the

law" stands attracted in such situation, when the appeal is

preferred beyond limitation, the applicant has to explain

the court as to what was the "sufficient cause" which

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means an adequate reason which prevented him to

approach the court within limitation, and if the person is

found negligent or for want of bonafide on his part and not

acted diligently or remained inactive as in the present

facts, it would not be justified in condoning such an

inordinate delay making this court warrant interference,

directing the Deputy Commissioner to re-appreciate and

pass appropriate orders in accordance with law and this

court pass the following:

ORDER

i. The writ petition is allowed-in-part.

ii. The impugned order passed by the Deputy Commissioner in Appeal No.7/04-05 is hereby set aside.

iii. The Deputy Commissioner to re-consider the application and pass appropriate orders bearing in mind the facts produced before the Deputy Commissioner and pass appropriate orders on the application filed to condone the delay in accordance with law.