Karnataka High Court
The Tahasildar vs Sri. Ramaiah. A on 28 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1401 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1401 OF 2023 (DEC)
BETWEEN:
1. THE TAHASILDAR
BENGALURU SOUTH TALUK
KANDHAYA BHAVANA
BENGALURU-560 009.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
M.S. BUILDING
DR. AMBEDKAR VEEDHI
BENGALURU-560 001.
...APPELLANTS
(BY SRI. KIRAN V. RON, AAG A/W.
SRI. S.H.RAGHAVENDRA, AGA)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF 1. SRI. RAMAIAH A.,
KARNATAKA
S/O LATE ABBAIAH
AGED ABOUT 82 YEARS
R/AT NO.48
PATTANAGERE VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK-560098.
...RESPONDENT
(BY SRI. KAMARAJU, ADVOCATE)
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RSA No. 1401 of 2023
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THIS RSA IS FILED UNDER ORDER XLII READ WITH
SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE
DATED 09.12.2022 PASSED IN R.A.NO.84/2021 ON THE FILE
OF II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, DISMISSING THE APPEAL AND
DECREEING THE SUIT PASSED IN O.S.NO.94/2023 ON THE
FILE OF ADDITIONAL II CIVIL JUDGE (JR.DN), BENGALURU
RURAL DISTRICT, BENGALURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for 'Orders' and earlier this Court
vide order dated 24.06.2025, condoned delay of 142 days
in filing this second appeal before this Court and heard the
appeal for admission and adjourned for production of
rejection order of the Committee for grant of land filed
under Form No.50 and today, the matter was heard.
Insofar as admission is concerned, there was a delay of
6,658 days in filing the appeal before the First Appellate
Court and the First Appellate Court passed a detailed order
and rejected IA filed under Order XLI Rule 3A of Code of
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Civil Procedure. Hence, the present second appeal is filed
before this Court.
2. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of declaration in O.S.
No. 94 of 2003, it is pleaded that the plaintiff is in actual,
physical, continuous, uninterrupted possession and
enjoyment of 2 acres of land in Survey No. 11 of
Pattanagere Village, Kengeri Hobli, Bangalore South Taluk,
(hereinafter referred to as 'suit property'). It is the further
case of the plaintiff that he is in possession of suit
property, openly, publicly to the knowledge of the
defendants and their subordinates since from more than
33 years and adverse to the title, ownership and interest
of defendants Nos. 1 and 2.
3. It is contented that earlier his father was
cultivating the suit property and subsequent to death of
his father, he himself is in possession of the suit property
and in the year 1991, the provisions are made under the
Karnataka Land Revenue Act,1964 calling upon persons
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who are in possession and cultivation of the Government
Gomala land to file their application in prescribed Form No.
50 and accordingly the plaintiff has filed an application and
the revenue authority simply kept the said application of
the plaintiff pending. Hence, the respondent/plaintiff had
filed a writ petition No.3574-3475 of 1996 before the High
Court of Karnataka for issuance of direction against the
defendants and the same came to be allowed and inspite
of directions vide order dated 17.07.1998, the authorities
have not taken any action and respondent/plaintiff was
constrained to file contempt petition before the High Court
in CCC No.19/2001.
4. It is also contented that all the revenue records
discloses in the cultivator's column, referring the
cultivation of the plaintiff as 'Bagar Hukum Saguvali' and
inspite of direction given by the High Court, the
appellant/State did not comply with the direction.
Therefore, the suit is filed for relief of declaration and for
permanent injunction. Inspite of service of suit
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summons, defendants i.e., appellants herein failed to
appear before the Trial Court and they were placed ex-
parte. Hence, plaintiff led the evidence and the Trial Court
considered the points for consideration that whether the
plaintiff is entitled for declaration and permanent
injunction in respect of the suit schedule property? The
Trial Court after consideration of the evidence and
documents which have been produced along with the
evidence of PW1, i.e., the order passed in the said Writ
Petition as well as order passed in CCC No.19 of 2001 and
88-89 of 2001, Pahani, notice issued by the Assistant
Director of Land Records, certified copy of mahazar, Form
No.50, endorsement, endorsement issued by the
Tahasildar, grant certificate and affidavit, answered point
No.1 as 'affirmative' and gave a finding that
respondent/plaintiff has perfected his title and ownership
and thereby he has become the owner of property in
respect of the suit schedule property and injunction
granted against defendant Nos.1 and 2, permanently
restraining from interfering with plaintiff's peaceful
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possession and enjoyment of the suit schedule property.
Further, the appellant/State did not choose to challenge
this decree immediately but filed Miscellaneous Petition
before the Court under Order IX Rule IX in 2009 which
came to be dismissed for non-prosecution in the year
2013. The appellant/State again kept quiet till 2019 and
one more petition is filed i.e., Miscellaneous No.17 of 2019
after lapse of 6 years for restoration of earlier dismissal of
petition No.26 of 2009. when the said petition is pending,
the appellant/State has preferred an appeal before the
First Appellate Court in RA No.84 of 2021 and a memo was
filed in the Miscellaneous Petition No.17/2019 seeking
permission to withdraw the petition and liberty to be given
to prefer regular appeal. Thereafter, the First Appellate
Court having considered delay of 6,658 days, came to
conclusion that no proper explanation and sufficient cause
was given to condone the said delay and passed a detailed
order on 09.12.2022. Being aggrieved by this, the
appellant/State has preferred this present Second Appeal.
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5. The contention of learned AAG appearing for
appellant/State is that the State officials were hand in
glove with the respondents and hence appeal was not filed
in time and he also submit that when the appellant/State
came to know about the same, the action is initiated
against the officials who indulge in such act and now
charge is framed and enquiry is pending against the
concerned officials who are in service as on today. Further,
he vehemently contended that though there was a delay of
6,658 days, the First Appellate Court ought to have
considered the appeal on merits.
6. The counsel in support of his argument relies
upon the judgment of Hon'ble Apex Court in the case of
Sheo Raj Singh (Deceased) through Legal
Representatives and Others vs. Union of India and
Another1 and draw the attention of this Court at
Paragraph 35.3, wherein an observation is made that it is
upon the Courts to consider the sufficiency of cause shown
reported in (2023) 10 SCC 531
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for the delay, and the length of delay is not always
decisive while exercising the discretion in such matters if
the delay is properly explained. Further, the merits of a
claim were also to be considered when deciding such
application for condonation of delay.
7. The counsel also relied upon judgment of the
Hon'ble Apex Court in the case of Executive Officer,
Antiyur Town Panchayat vs. G. Arumugam (Dead) by
Legal representatives2 wherein discussion was made
with regard to Section 5 of Limitation Act and the counsel
drew his attention of this court with regard to discussion
made in paragraph No.4 that the court must always take a
justice-oriented approach while considering an application
for condonation of delay. If the Court is convinced that
there had been an attempt on the part of the Government
officials or public servants to defeat justice by causing
delay, the court, in view of the larger public interest,
should take a lenient view in such situations, condone the
reported in (2015) 3 Supreme Court cases 569
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delay, howsoever huge may be the delay, and have the
matter decided on merits.
8. The counsel also relied upon the judgment of
this Court in the case of the State of Karnataka
represented by Revenue Secretary vs. H.B.
Munivenkatappa3 and drew attention of this Court to
paragraph No.30 onwards of the said judgment wherein
the discussion is made that law of limitation is no doubt
the same for private citizen as well as for the Government
authorities. Government, like any other litigant must take
the responsibility for the acts or omissions of its officers.
But somewhat different complexion is imparted to the
matter where Government makes out a case where public
interest was shown to have suffered owing to the acts of
fraud or bad faith on the part of its officers or agents and
where the officers were clearly at cross-purposes with it.
9. The counsel also brought to notice of this court
the observation made in paragraph No.31 that it is also a
ILR 2007 KAR 1893
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fundamental principle that a decree passed by the Court
without jurisdiction is a nullity. Its validity can be set up
whenever and wherever it is sought to be enforced or
relied upon, even at the stage of execution and even in
collateral proceedings. The defect of jurisdiction whether
it is technical or territorial or whether it is in respect of
subject matter of action, strikes at the very authority of
the Court to pass any decree and such defect cannot be
cured even by consent of parties.
10. The counsel also draws attention of this Court
with regard to discussion made in paragraph No.33 of the
said judgment that the material on record discloses at
every stage the persons who were entrusted with
responsibility of protecting the public property have let
down the Government. The way the litigation has been
fought and the way the Government representatives and
their counsel have let down the public interest, is
shocking. When the matter was brought to the notice of
Lokayuktha, it issued a clean chit to those officials saying
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that the public interest has not suffered. There cannot be a
worse situation than this. A mighty Government rendered
helpless by such advice and breach of trust. If the order of
the Land Reforms Tribunal exists as contented by the
plaintiff, it is clear that the Assistant Commissioner who is
the chairman of the Tribunal has failed to notice the
aforesaid statutory provisions which confers no right to the
vested land in the inamdar and the Tribunal to grant
occupancy rights in respect of a tank bed. Having
considered the material on record and discussion made by
the Court, delay of 9 years 7 days in preferring the appeal
was condoned while considering the Regular Second
Appeal.
11. The counsel appearing for the appellant/State
also relied upon the judgment in the case of State of
Nagaland vs. Lipok Ao and Others,4 wherein also
Section 5 of the Limitation Act was discussed with regard
to the sufficient cause for condoning the delay, existence
reported in (2005) 3 SCC 752
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of and necessity of length of delay and held proof by
sufficient cause is a condition precedent for exercise of the
extraordinary discretion vested in the Court. What counts
is not the length of the delay, but the sufficiency of the
cause and shortness of the delay is one of the
circumstances to be taken into account in using the
discretion.
12. Per contra, the counsel appearing for
respondent/plaintiff brought to notice of this court a
detailed discussion made by the First Appellate Court in
discussing with regard to delay is concerned and also the
conduct of the State in pursuing the remedy before the
Trial Court even after passing of judgment and decree. An
attempt is made before the Trial Court by misleading the
Appellate Court that the delay was only 2,937 days and
not 6,658 days and the same was noticed in paragraph
No.23 and so also taken note of in paragraph No.24 that a
memo was filed before the Trial Court in Miscellaneous No.
17 of 2019 to file an appeal or to file a fresh petition and
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the same was withdrawn on 12.11.2021. But the present
appeal was filed on 12.10.2021. Further, the counsel
taken note of the conduct of the State that the said memo
was filed after lapse of 20 days of filing of the appeal and
the same was discussed in paragraph No.25.
13. The counsel also brought to the notice of this
Court that in paragraph No.26 that in spite of suit
summons was served on the State in OS No. 94 of 2003,
they have not filed any written statement or contested the
matter and also no proper explanation was given and even
Miscellaneous Petition was filed in the year 2009 i.e., after
lapse of 6 years. Further, the said Miscellaneous Petition
was also not properly conducted and the same was
dismissed in the year 2013 itself and did not challenge the
said order or filed any petition for restoration. Only in the
year 2019, the appellant/State has filed one more
Miscellaneous Petition after lapse of 6 years i.e. on
17.02.2019 and the same was also taken note of by the
Trial Court. Further, he contends that in each and every
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stage, the appellant/State has not shown any interest in
pursuing the remedy available under law and also the First
Appellate Court having considered the material on record,
rightly comes to the conclusion that sufficient cause is not
shown and properly explained the delay and it does not
requires any interference of this Court.
14. The counsel in support of his argument also
relied upon the recent judgment of the Hon'ble Apex Court
in the case of Shivamma (Dead) by Lrs., vs. Karnataka
Housing Board and others,5 by drawing attention of this
Court to the discussion made in paragraph No.140,
wherein the Apex Court held that the Courts must be
mindful that strong case on merits is no ground for
condonation of delay. When an application for condonation
of delay is placed before the Court, the inquiry is confined
to whether sufficient cause has been demonstrated for not
filing the appeal or proceeding within the prescribed period
of limitation. The merits of the underlying case are wholly
reported in 2025 SCC Online SC 1969
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extraneous to this inquiry. The purpose of Section 5 of the
Limitation Act is not to determine whether the claim is
legally or factually strong, but only whether the applicant
had a reasonable justification for the delay.
15. The counsel also brought to notice of this Court
about the discussion made in paragraph No.141 of the said
judgment with regard to sufficient cause that the
condonation of delay is a matter of discretion based on
explanation for the delay, not on the prospects of success
in the case. If merits are considered, a litigation with a
stronger case may be favoured with condonation despite
negligence, while a weaker case may be rejected even if
sufficient cause is made out. This would lead to an
inequitable and inconsistent application of the law,
undermining the uniform standard that the doctrine of
limitation is designed to maintain.
16. Further he also brought to notice of this Court,
the discussion made in paragraph No.142, wherein it is
held that the judicial discipline required at this stage
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demands that only the cause for delay be scrutinized, and
nothing more. This ensures that the ultimate adjudication
of rights occurs in a neutral and unprejudiced setting.
17. The counsel also brought to notice of this Court
the discussion made in Paragraph No.256, that as far as
the contention of respondent No.1 is concerned, approps
to the merits of moulding of relief by awarding of
compensation by the First Appellate Court, the same is
squarely answered by the principles encapsulated in
Pathapati Subba Reddy, wherein it is categorically
maintained that Court considering a condonation of delay
ought not to go into the merits of the case at hand.
18. The counsel also relies upon the judgment of
the Hon'ble Apex Court in the case of General Manager
Haryana Roadways vs. Jai Bhagwan and another6,
wherein the discussion is made in paragraph No.13 of the
said judgment with regard to suppression of material fact
is viewed seriously by the superior courts exercising their
reported in (2008) 4 SCC 127.
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discretionary jurisdiction. Further, he also relied upon the
judgment in the case of S.J.S. Business (P) Ltd. Vs.
State of Bihar, wherein at paragraph No.13, it is held
that suppression of a material fact by a litigant disqualifies
such litigant from obtaining any relief. This rule has been
evolved out of the need of the courts to deter a litigant
from abusing the process of court by deceiving it. But the
suppressed fact must be a material one in the sense that
had it not been suppressed it would have had an effect on
the merits of the case.
19. The counsel also brought to notice of this court
the discussion made in paragraph Nos.15 and 16 of the
said judgment that the State was guilty of serious delay
and laches, we, therefore, are of the opinion that
suppression of fact of such a nature and that too at the
instance of the State must be viewed seriously. Further,
the counsel also relied upon the judgment of this Court
passed in RSA No. 209 of 2007 and brought to notice of
this Court the discussion made in paragraph No.24
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wherein this Court placed reliance on the judgment of the
Hon'ble Apex Court in the case of Prabhakar Vs. Joint
Director, Sericulture Department and Another
reported in (2015) 15 SCC 1, wherein discussion was
made with regard to doctrine of laches and delay as well
as doctrine of acquiescence and non-suited the litigants
who approached the Court belatedly without any justifiable
explanation for bringing the action after unreasonable
delay. Doctrine of laches is in fact, an application of
maxim of equity "delay defeats equities".
20. Further, the counsel brought to notice of this
court the discussion made in paragraph No.25 of the
judgment of this Court where this Court also placed
reliance on the judgment of the Hon'ble Apex Court in the
case of B.L. Sreedhar and Others vs. K.M. Munireddy
(Dead) and Others reported in (2003) 2 SCC 355,
wherein the Hon'ble Apex Court, while discussing with
regard to law of acquiescence, extracted para No.40 of
illustrious book Estoppels and the Substantive Law under
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the title "Conduct of indifference or Acquiescence, held
that it is settled law that an estoppel may arise as against
persons who have not wilfully made any
misrepresentation, and whose conduct is free from fraud
or negligence, but as against whom inference may
reasonably have been drawn upon which others may have
been inducted to act.
21. The counsel appearing for appellant/State in
reply to this argument would vehemently contend that first
of all, the Trial Court is not having any jurisdiction to grant
the relief of declaration and also brought to notice of this
Court by filing a memo stating that the claim made by
respondent/plaintiff by filing an application i.e., Form No.
50 was rejected in 2003 itself and the same is suppressed
by the respondent/plaintiff. Further, he also brought to
notice of this Court that an attempt is also made by the
respondent/plaintiff for phodi work and the same came to
be dismissed vide order dated 27.08.2018. A copy was
also served on the respondent/plaintiff.
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22. The counsel appearing for respondent/plaintiff
would submit that this Court can compare the signature
available in the vakkalath filed by the respondent/plaintiff
and the signature available in the endorsement dated
27.08.2018 is not the signature of the respondent/plaintiff
and the same is created one. Further, he also submit that
even the proceedings referred by the appellant/State
dated 13.10.2003 wherein the State has rejected the
application of the respondent/plaintiff and the same is not
communicated to the respondent/plaintiff and no such
decision was taken. The learned counsel also brought to
notice of this court that in a miscellaneous proceedings
filed before the Court in Misc. No.17 of 2019, the
Tahasildar filed an affidavit stating that the application
filed by the respondent/plaintiff is still pending for
consideration. If this type of affidavit is filed by the
Tahasildar, the memo along with documents No.1 and 2
filed upon by the appellant/State before this Court today,
cannot be believed and considered. Further, no such
documents are served on the respondent/plaintiff.
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23. Having heard the arguments advanced by the
counsels on either side and on perusal of material on
record particularly the grounds urged in the memorandum
of appeal, the point that would arise for consideration of
this Court are:
(1) Whether the First Appellate Court
committed an error in rejecting the
appeal by dismissing the application
filed under Section 5 of Limitation Act,
for condonation of delay of 6,658 days
in filing the appeal?
(2) What order?
24. Having heard the respective counsels and also
the principles laid down in the Judgments referred supra
by both the counsels, it is not in dispute that the
respondent/plaintiff has approached the trial Court seeking
the relief of declaration and permanent injunction as
against appellant/State and also it is not in dispute that
suit summons was issued against the appellant/State.
Since appellant/State was arraigned as defendant Nos.1
and 2 before the trial Court in the said suit and in spite of
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service of summons, the appellant/State did not choose to
engage the counsel and contest the matter. The judgment
and decree was passed on 29.08.2003 by the Trial Court
and the same was an ex-parte judgment and decree.
25. It is the contention of the appellant/State that
they came to know about the said judgment and decree
only in the year 2009 and immediately they filed
Miscellaneous Petition No.26 of 2009. Admittedly, the
same came to be dismissed in the year 2013 and it is not
decided on merits. It is also within the knowledge of the
Appellant/State and even according to the arguments of
learned AAG, that they came to know about the said
judgment and decree in the year 2009 and filed the
Miscellaneous Petition. The appellant/State has not even
filed any application for restoration of Miscellaneous
Petition which was dismissed in the year 2013. But the
application for restoration was filed in the year 2019 after
lapse of 6 years and the same is also for restoration. It is
also settled law that even if any judgment is passed and
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the same is ex-parte, there are two options to the
aggrieved person either to invoke Order IX Rule 13 of CPC
or to file an appeal. But no such appeal was filed by the
appellant/State. Further, the appellant/State has filed
earlier petition under Order IX Rule 9 and not under Order
IX Rule 13 which came to be dismissed in 2013 itself.
26. It is also important to note that even when the
second miscellaneous petition filed upon the miscellaneous
petition already filed, i.e. Miscellaneous No. 17 of 2019
and when the same is pending for consideration, the
appellant/State has preferred Regular Appeal No. 84 of
2021. After lapse of 18 years since judgment and decree
was passed by the trial Court in OS No.94 of 2003 on
29.08.2003 and by that time, there was a delay of 6,658
days. No doubt the First Appellate Court while considering
the aspect of delay, discussed in detail and the Counsel
appearing for the State also brought to notice of this Court
that an observation is made that even if the judgment of
the Trial Court is restored and remitted back, the
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Government will not pursue the matter and the said
observation is made having taken note of the conduct of
the State and even inspite of having the knowledge of
judgment and decree passed in the year 2003, and not
pursued the appropriate remedy. Miscellaneous petition
was filed in the year 2009 and the same was not pursued
in a proper manner. The same was dismissed in 2013 and
even after dismissal of Miscellaneous Petition also, no
steps were taken and again after lapse of 6 years, one
more Miscellaneous Petition was filed. When such being
the case, while considering the delay application, the Court
has to take note of the conduct of State whether it is a
State or a private party and law is also settled to that
effect is concerned as one and the same and there cannot
be two yardsticks whether it is a State Government or a
private party.
27. The counsel appearing for the appellant/State
brought to the notice of this Court the judgment of Hon'ble
Apex Court in Sheo Raj Singh's case, Armugam's case
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and also the judgment of this Court in the case of State of
Karnataka represented by Revenue Secretary vs.
H.B. Munivenkatappa, wherein discussion was made
with regard to condonation of delay of 9 years 7 days as
well as 1373 days. Further, in the case of Arumugam
and also in the case of Sheo Raj, wherein explanation is
made with regard to sufficient cause and the same has to
be considered on merits.
28. The Hon'ble Apex Court in the recent judgment
which is relied upon by the counsel appearing for
respondent/plaintiff by drawing attention of this Court the
discussion made at paragraph Nos.140 and 141 in
Shivamma's case supra. The Hon'ble Apex Court also
held that the Court has to take note of condonation of
delay and sufficient cause and it must be mindful that
strong case on merits is no ground for condonation of
delay and purpose of Section 5 of the Limitation Act is not
to determine whether the claim is legally or factually
strong, but only whether the applicant had a reasonable
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justification for the delay. The condonation of delay is a
matter of discretion based on explanation for the delay,
not on the prospects of success in the case. If merits are
considered, a litigant with a stronger case may be
favoured with condonation despite negligence, while a
weaker case may be rejected even if sufficient cause is
made out and this would lead to an inequitable and
inconsistent application of the law, undermining the
uniform standard that the doctrine of limitation is designed
to maintain. Further, an observation is also made that
judicial discipline required at this stage demands only the
cause for delay be scrutinized and nothing more. This
ensures that the ultimate adjudication of rights accrues in
a neutral and unprejudiced setting and in view of above
discussion not to consider the merits but sufficient cause.
29. It is also important to take note of the
discussion made by the Hon'ble Apex Court in the very
same judgment at paragraph No.188, held that however
what is equally significant to note is that the aforesaid
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observations of this Court in Chandra Mani and Lipok A.O.
were accompanied by a clear message to the State and all
its instrumentalities, that a leisurely and lethargic
approach cannot continue for all times to come. It had
urged the State and all public authorities to constitute
legal cells to examine the cases whether any legal
principles are involved for decision by the courts, if not,
then the endeavour should be made towards arriving at a
settlement instead, rather than re-agitating the belated
causes before the courts. It further observed that where
the case requires an appeal or application to be filed,
despite the delay, then prompt action should be pursued
by the officer responsible to file the appeal and he should
be made personally responsible for lapses, if any and no
such action is taken for delay of 18 years.
30. Further in paragraph number 189, an
observation is made that this was followed by the
judgment rendered in the case of Indian Oil
Corporation, wherein this court sowed the seeds for the
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shift in approach of the courts in matters where
condonation of delay was sought by the State or its
instrumentalities, inasmuch as it held that the Government
and its various functionaries cannot be placed on a
pedestal higher than any ordinary litigants, and held that
the pragmatic and justice oriented approach of the courts
should be confined only to cases where there was no gross
negligence or deliberate inaction on the part of the State.
31. Further, even in paragraph No.190, the Apex
court also taken note of the principles laid down in the
judgment of Postmaster General's case which has been
relied upon by the counsel for the respondent and even
also in paragraph No. 191 considering the reasons
assigned in the application filed for the purpose of Section
5 of Limitation Act, this Court simultaneously observed
that such differential treatment cannot continue for all
times to come. Further it is also observed that because
this Court, in the latter parts of the aforesaid decisions,
conveyed an empathetic message to all the States and its
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instrumentalities to constitute legal sense for the timely
scrutiny of its cases to explore the possibility of settlement
instead of pursuing belated claims, wherever possible and
to ensure that filing of appeals or application as the case
may be is undertaken expeditiously, and the officer
responsible for pursuing such action is made personally
liable for lapses, if any.
32. The Apex Court also discussed in detail in
paragraph No.194, considering the principles laid down in
the case of Amalendu Kumar Bera v. State of West
Bengal, that in matters of condonation of delay, such
indulgence cannot be extended in cases where the delay is
attributable to serious laches or negligence on the part of
the State. Delays as a result of the official business of the
Government requires its pedantic approach from public
justice perspective. It held that delay should not be
condoned mechanically in the absence of sufficient cause
merely because the party happens to be the State. The
Hon'ble Apex Court also in the said judgment discussed in
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detail the same with regard to the lethargic attitude on the
part of the State and also discussed with regard to laches
on the part of the State in approaching the Court.
33. Further, in paragraph No.258, the Hon'ble Apex
Court held that the length of the delay is a relevant matter
which the court must take into consideration while
considering whether the delay should be condoned or not.
From the tenor of the approach of the respondents, it
appears that they want to fix their own period of limitation
for instituting the proceedings for which law has prescribed
a period of limitation. Once it is held that a party has lost
its right to have the matter considered on merits because
of his own inaction. For a long, it cannot be presumed to
be non deliberate delay and in such circumstances of the
case, it cannot be heard to plead that for substantial
justice deserves to be preferred as against the technical
consideration. While considering the plea of condonation of
delay, the court must not start with the merits of the main
matter. The Court must owes a duty to first ascertain the
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bonafides of explanation offered by the parties seeking
condonation. It is only if the sufficient cause assigned by
the litigant and opposition of the other side is equally
balanced that the court may bring into aid the merits of
the matter for the purpose of condoning the delay.
34. A detailed discussion was made in paragraph
Nos.259 and 260 of the said judgment with regard to
delay is concerned and in the said case, has taken note of
delay of 3,966 days and in paragraph No.260 held that it
is abundantly clear that High Court has erroneously
condoned a massive delay of 3,966 days on account of
certain lapses at the administrative levels and of there
being no follow-ups in the proceedings along with finding
certain merits in the case of respondent no. 1 against the
maintainability of the suit of the appellant and that of the
relief moulded by the First Appellate Court. We have no
hesitation in stating that such grounds are nowhere near
to being "sufficient cause" as per Section 5 of Limitation
Act, 1963, the High Court lost sight of the fact that
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precedents and authorities it relied upon by it had delay of
two-digits or even that of single-digit, more particularly,
the delay in those cases was supported by sufficient
cause. The present case, however, stands on a different
footing, owing to such an enormous delay. Hence, we are
not inclined to accept the condonation of the delay by the
High Court.
35. Further, in paragraph No.262, the Hon'ble Apex
Court gave a conclusion that High Courts ought not to give
a legitimizing effect to such a callous attitude of the State
Authorities or its instrumentalities, and should remain
extra cautious, if the party seeking condonation of delay is
a State authority. They should not become surrogates for
State laxity and lethargy. The constitutional Courts ought
to be cognizant of the apathy and pangs of a private
litigant. Litigants cannot be placed in situations of
perpetual litigations, wherein the fruits of their decrees or
favourable orders are frustrated at later stages. We are at
pains to reiterate this everlasting trend, and put all the
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High Courts to notice, not to reopen matters with
inordinate delay, until sufficient cause exists, as by doing
so the Courts only add insult to the injury, more
particularly in appeals under Section 100 of the CPC,
wherein its jurisdiction is already limited to questions of
law. No litigant should be permitted to be lethargic and
apathetic, much less be permitted by the Courts to misuse
the process of law.
36. Having considered the principles laid down in
the recent judgment of Hon'ble Apex Court in the case of
Shivamma (supra), no doubt the counsel appearing for
the State relied upon earlier judgment of the Hon'ble Apex
Court and those judgments are also relied upon by the
Hon'ble Apex Court in the recent judgment and the Court
has to take note of factual aspects of each case while
applying the principles laid down in the judgment relied
upon by the appellant/State as well as
respondent/plaintiff. The principles laid down in the
judgment depends upon each facts and circumstances of
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the case and whether the judgment relied upon by the
appellant/State as well as the Judgment relied upon by the
respondent/plaintiff are fit into the case of facts and
circumstances of the case, this Court has to analyze the
same.
37. Having considered the factual aspects of the
case and also the case on hand, it has to be noted that the
respondent plaintiff filed suit for the relief of declaration
and injunction and it has to be noted that the respondent
plaintiff claims the relief based on the plea that they are in
actual possession of the property and their father was in
the possession of the property and subsequent to the
death of his father, plaintiff continued the possession and
even before filing the suit also, they filed writ petition
before the Court and in the Writ Petition also, direction
was given to consider the application which was filed by
respondent/plaintiff under Form No.50 before the
competent authority and inspite of direction was given, the
authority not considered the case of the plaintiff and then
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initiated contempt proceedings before the High Court and
thereafter has also not considered the application. But the
counsel appearing for the appellant/State brought to
notice of this Court that immediately after passing of the
judgment and decree, an order was passed rejecting the
claim of the respondent/plaintiff. But no material is placed
before the Court with regard to the communication of that
order and has now filed memo with documents before this
Court and the same is disputed.
38. Apart from that, the appellant/State also relied
upon rejection of the application filed by respondent/
plaintiff with regard to phodi work is concerned and relies
upon the rejection of the same by filing a memo. Further,
the signature found on said memo is not the signature of
respondent/plaintiff. Further, learned counsel appearing
for respondent/plaintiff also brought to notice of this Court
that, it is not the signature of the respondent/ plaintiff and
on perusal of the same, it appears that they are different
and as per the provisions under Section 73 of the Evidence
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Act, 1872, this Court can compare and the same is not the
signature of the plaintiff/respondent.
39. In order to prove the factum of rejection of
application i.e., Form No. 50, so also the application for
phodi, the same is disputed by the respondent/plaintiff
and apart from that, counsel also brought to notice of this
Court that when Miscellaneous Petition No.17 of 2019 was
filed, wherein the Tahsildar who appears on behalf of the
appellant/State sworn to an affidavit stating that
application of respondent/plaintiff is pending for
consideration and when such sworn affidavit is filed by
him, the very contention of the appellant/State also
cannot be accepted for rejection of the same and also
nothing is placed on record before the Court to prove the
same and the contention of the appellant/State before this
Court is contrary to their own affidavit filed in the year
2019.
40. It is also important to note that when the
judgment and decree was passed in the year 2003 and
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also when the pleading is made before the trial Court that
an application is filed for consideration, the same is not
considered by the appellant/State inspite of direction by
the High Court i.e., both on Writ Petition and Contempt
proceedings. But the Trial Court proceeded to pass an
order of declaration, since the State was not contested the
matter inspite of service of notice, it is not the case of the
appellant/State that no notice was served in the original
suit, but kept quite even after service of notice. Till 2009,
there was no attempt by appellant/State. But only in the
year 2009, an attempt is made to file Miscellaneous
Petition No.26 of 2009 for setting aside the judgment and
decree dated 29.08.2003 and the same came to be
dismissed in 2013 itself and no effort was made either to
file an appeal or an application for restoration of
Miscellaneous Petition No.26/2009 immediately and also
against delay of 6 years. This Court made it clear that
when the judgment and decree is passed by the Trial
Court which is ex-parte, there is an option to the
aggrieved party either to file an appeal or to invoke Order
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IX Rule 13 for setting aside the judgment and decree.
But, the same has not been done by the appellant/State
even from 2003 till 2022 and there is a delay of 18 years
in pursuing the remedy and the effort made is also half
hearted attempt. Now the counsel appearing for the
appellant/State would submit that there is a hand in glove
with the plaintiff/respondent and the officials and also it
has to be noted that when they came to know about the
judgment and decree in the year 2009, despite filing
Miscellaneous Petition, but no action was taken against the
erred officials and they kept quiet even though they are
having the knowledge of judgment and decree from 2009
to 2025 and that too, when this Court noticed that there is
a lapse on the part of the officials of the State, a direction
was given by this Court vide order dated 24.06.2025, then
only, the appellant/State opened its eyes with regard to
initiation of action against the erred officials when this
Court called for the report for having taken any action. Till
then, no action has been taken against them in this
regard. But now, counsel appearing for the appellant/State
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contended that they have initiated the proceedings against
the erred officials and disciplinary enquiry is pending that
too at the instance of the Court, the said proceedings is
initiated and appellant/State has not taken any voluntary
action against the concerned officials for a period of almost
22 years. It is nothing but an eyewash to satisfy this
Court.
41. Having taken note of the aforesaid facts into
consideration, no doubt, there is a delay of 6,658 days and
also it is important to note that the land which the
respondent/plaintiff claims as a gomala land, an
application is filed under Form No. 50. Form No. 50 is
filed before the authority and authority in turn has not
decided in this regard for more than 25 years. But now,
the appellant/State relies upon rejection of the same and
respondent/plaintiff disputes that the same is not
communicated.
42. In my earlier discussion, it is noted that in order
to prove the factum of rejection of an application, no
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material is placed before the Court and even with regard
to rejection of phodi work. Further, the signature appears
on the affidavit is not the signature of the
respondent/plaintiff, however, taking into note of the
factual aspects of the case, when the claim is made that
the respondent/plaintiff is in unauthorised occupation from
longer time, but the application is filed before the
competent authority and competent authority has to take
the decision with regard to the claim made by the
respondent/plaintiff. But has not taken any decision
inspite of direction in Writ Petition and Contempt
proceedings. Having taken note of lethargic attitude on
the part of the appellant/State from the year 2003 that
even though they are having the knowledge about the
judgment and decree from 2009 onwards and also pleaded
that they are having the knowledge about the said
judgment and decree, when the suit was filed in 2003
itself and summons were served to the appellant/State,
they are not disputing the fact that the summons was not
served, but the officials of the State have not pursued the
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matter and there is a delay of 22 years in filing the same.
The State even bothered to the direction of this Court in
the Writ Petition as well as Contempt petition order which
have been initiated prior to filing of suit and has not
directly approached the Civil Court.
43. The principles laid down in the judgment of the
Hon'ble Apex Court in Shivamma's case supra, particularly
in paragraph Nos.140,141,142, 258, 259 and 260, it is
observed that even in the case of delay of 3966 days on
account of certain lapses at the administrative levels and
of there being no follow ups in the proceedings along with
finding certain merits in the case of the respondent no. 1
against the maintainability of the suit of the appellant and
that of the relief moulded by the First Appellate Court, the
Hon'ble Apex Court observed that, we have no hesitation
in stating that such grounds are nowhere near to being
sufficient cause as per Section 5 of the Limitation
Act,1963. The High Court lost sight of the fact that the
precedents and authorities it relied upon by it had always
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of two digits or even that of single digit and cautioned the
High Court in condoning the delay. In the present case,
however, stands on a very different footing owing to such
an enormous delay and inclined to accept the condonation
of delay. In the case on hand, it is double the delay of 18
years i.e. delay of 6,658 days and having considered the
grounds which have been urged by the learned AAG that it
is a lapse on the part of the State officials and they are in
hand in glove with the respondent/plaintiff and the same
cannot be a ground to condone the delay and even the
First Appellate Court also taken note of delay that no
sufficient cause is shown. But in the case on hand, only
on the insistence of this Court, the action is taken by the
appellant/State that too when this Court in Second Appeal
made an observation that when the order was passed on
24.06.2025 and also even considering the said fact into
consideration, the factual aspects of the case where there
is an inordinate delay unless sufficient cause is made out
by the First Appellate Court as held by the Hon'ble Apex
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Court in recent judgment in Shivamma's case that merit
of the case cannot be considered.
44. This Court discussed in detail the principles laid
down in the judgments of the Hon'ble Apex Court which
was decided on 12.09.2025, I do not find any ground to
set aside the order of the Appellate Court in coming to the
conclusion that the appellant/State has made out the
ground to condone the inordinate delay of 6,658 days. No
doubt, the Appellate Court made an observation that even
if it is set aside and remanded, the appellant/State will not
pursue the remedy and though such observation is made,
the same shows the conduct of the appellant/State in this
regard. Even the judgment and decree was passed in 2003
and also summons was served to the appellant/State, they
did not pursue the suit and even contented that they came
to know about the same in the year 2009 and so also the
appropriate remedy is not availed till 2022 and after lapse
of 18 years, the appeal is filed before the First Appellate
Court and when such being the case, the principles laid
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down in the judgment of the Hon'ble Apex Court in the
case of Shivamma's case (supra), aptly applicable to
the case on hand even if it is a State Government, there
cannot be two yardstick to condone such a huge delay.
Further, even if the State is losing the prime property and
the same cannot be a ground to condone such a huge
delay. But now the learned AAG would submit that as the
officials are in hand in glove with the respondent/plaintiff,
they could not pursue the remedy. When such being the
case, since already the proceedings is initiated against the
alleged erred officials at the instance of this Court and not
voluntarily, and if the appellant/State succeeds in the
same, if there is any loss to the State, the same can be
recovered from the erred officials who are responsible for
losing the property of the State as observed by the
Hon'ble Apex Court in Postmaster General's case
referred supra.
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45. With the aforesaid observation, the Regular
Second Appeal stands dismissed as there no grounds to
admit and frame substantial questions of law.
Sd/-
(H.P.SANDESH)
JUDGE
SSD
