1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST 2017 PRESENT THE HON'BLE MR.JUSTICE [ENTITY] AND THE HON'BLE MRS.JUSTICE S SUJATHA [ENTITY] NO.1724/2016 BETWEEN: SRI C S PRABHUDEVA S/O C N SHAMBULINGAPPA, AGED ABOUT 56 YEARS, R/AT NO.840, MADAIAH ROAD, BANGARPET, KOLAR DISTRICT-563114 APPELLANT (BY SRI S M CHANDRASHEKAR, SR. COUNSEL ALONG WITH MUNIGANGAPPA M, ADVOCATE) AND: 1.SMT. AKSHATHA D/O C S PRABHUDEVA, AGED ABOUT 29 YEARS 2.SRI NAGABHARANA S/O C S PRABHUDEVA, 2 AGED ABOUT 24 YEARS BOTH ARE RESIDING AT NO.350, 7TH MAIN, 3RD CROSS, HAL 2ND STAGE, INDIRANAGAR, BENGALURU-560008 RESPONDENTS THIS [ENTITY] IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:02.09.2010 PASSED IN [CASE NUMBER] ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, K.G.F., BY ALLOWING THIS APPEAL AND DISMISS THE SUIT OF THE PLAINTIFF. THIS APPEAL ALONG WITH [CASE NUMBER] COMING ON FOR ORDERS THIS DAY, [ENTITY] J., MADE THE FOLLOWING: ORDER
We have heard Mr.[ENTITY], learned Senior Counsel with Mr.[ENTITY], learned Counsel for the appellant.
2. [CASE NUMBER] has been preferred for condonation of delay of 2157 days in preferring the appeal against the judgment and the preliminary decree passed by the lower Court in [CASE NUMBER] dated 02.09.2010.
3. As such, the delay is for a long period of about 7 years and therefore, we had called upon the learned Counsel appearing for the appellant to justify the ground of showing sufficient cause.
4. In paragraph-3 of the affidavit, it has been stated that the father of the appellant was not well and he was occupied with the final decree proceedings and therefore the delay has been caused in preferring the appeal. It has been stated that since the execution proceedings are filed and delivery warrant has been issued, the present appeal has been preferred at the earliest.
5. It is by now well settled that when the delay is for a long period, the Court would take a strict view of the matter, but if the delay is for a shorter period, Court may take lenient view of the matter. The reference made to the decision of the Apex Court in the case of [PRECEDENT], wherein at paragraphs 14 to 16, it has been observed as under:
"14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. The expression "sufficient cause" employed in [SECTION] of the [ACT] and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate
- [PRECEDENT] and [PRECEDENT].
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], and [PRECEDENT]."
6. If the facts of the present case are examined, there is no satisfactory ground at all nor there is any date-wise detail for explanation of each day's delay. No details are given about the sickness of the father from which date to which date and whether sickness was such where the presence of the appellant was indispensable. Further, when the final decree proceedings were drawn, the appellant was fully conscious that there is preliminary decree passed in the main suit proceedings. Not only that, the appellant is stated to have participated in the final decree proceeding. Final decree proceeding is also drawn and thereafter when execution is moved in the final decree proceedings, at that stage present appeal is preferred against the preliminary decree on the basis of the final decree is drawn. There is a conscious acquiescence on the part of the appellant for the period during which the delay is caused in preferring the appeal.
7. Additionally, not only by acquiescence but the rights of the parties have also been altered during the period of delay, inasmuch as based on the preliminary decree which is under challenge, final decree is drawn and final decree proceedings are also concluded.
8. Under these circumstances, we do not find that the discretion for condonation of such long delay of 2157 days does not deserve to be exercised. The application for condonation of delay deserves to be dismissed. Therefore dismissed.
9. In view of the order passed in [CASE NUMBER] for condonation of delay, the [ENTITY] would not survive. Hence, [CASE NUMBER] for stay in [ENTITY] would not survive and both shall stand disposed of.
JUDGE Sd/-
JUDGE JT/-