1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 1OTF1 DAY OF FEBRUARY, 2011 BEFORE THE HONBLE MR.JUSTICE ARAVIND KUMAR R.F.A. NO.794/2007 Between: DUNDAPPA BASAVANTAPPA HARAGAPURE SINCE DEAD BY LRS la) SMT. SUSHILA RAYAPPA YESHWT ANT, 36 YRS, 0CC: HOUSEHOLD R/O BORAGAL, HUKKERI, BELGAUM. 2. SMT PARVVA W/0 DUNDAPPA HARAGAPURE 50 YRS 0CC: HOUSEHOLD WORK S/O SIRAHATh B K , HUKKERI BELGAUM. APPELLANTS (BY SRI.V.R.DATAR, ADVOCATE) And: CHANDRAPPA BASAVATAPPA HARAGAPURE 48 YRS, 0CC: AGRICULTURE R/O SHIRAHATTI, BK HUDDERI, BELGAUM 2. SMT PARAVVA W/O MALLAPPA HATTARAWAT 52 YRS, 0CC: HOUSEHODL WORK R/O MALLAPUR PCT GOKAK 3. SMT RUKMAVVA SHIDRAM ITI 44 YRS, OiC: HOUSEHOLD WORK R/O SHIRAHATI, HUKKERI HUKKERI 4. SMT RATNAVVA DUNADUNDAPPA BHAGGARI 40 YRS, 0CC: HOUSEHOLD WORK R/O DURADUNDI, GOKAK 5. BHIMAPA MALLAPPA HATTARAWAT AGE:44 YRS, 0CC: AGRICULTURE R/0 MALLAPUR GOKAK 6. SMT SHIVABASU SATAPPA HARAGAPURE Age:5OYRS, 0CC: AGRICULURE R/0 SHIRAHATTI, HUKKERI 7. TIPPANNA SATAPPA HARAGAPURA Age: 44 YRS, 0CC: SERVICE R/0 SHIRAHATh, HUKKERI 8. SHIDRAD SHILSHALL ITT Age: 55 YRS, 0CC: AGRICULTURE R/0 SHIRAHATh, HUKKERI 9. BASAVANI SHIVAYOGI HARAGAPURE Age:26 YRS, 0CC: AGRICULTURE R/0 SHIRAHATTI, HUKKERI 10. LAGAMAPPA KHANAPPA HALATTI Age:45 YRS, 0CC: AGRICULTURE R/0 SHIRAHATTI, HUKKERI II. SECRETARY GRAM PANCHAYAT SARAPU RA HUKKERI 12. SATAPPA IRAPPA BADIGER MAJOR, 0CC: AGRICULTURE R/0 SHIRAHATh D N HUKKERI 13. LADAJI HUSSAIN AMMANAGI MAJOR R/0 SHIRAHATTI DN HUKKERI 14. SMT. SHARAVVA W/0 SHANAKR HATTARWAT MAJOR, 0CC: HOUSEHOLD WORK R/O MALLAPAP PG GOKAK 15. SAVITRI W/0 BASAVANNI BANGARI MAJOR, 0CC: HOUSEHOLD WORK R/O DURADUNI, GOKAK 16. SHIVAYOGI MALLAPPA HARAGAPURE MAJOR, 0CC: AGRICULTURE R/O SHIRAHATTI, HUKKERI 17. SHIVAMURTHY SHRISHATTI ITT MAJOR, 0CC: AGRICULTURE R/O SHIRAHATTI, HUKKERI 18. SHANTAWWA W/O SATAPAP BELAGODA MAJOR, 0CC: HOUSEHOLD R/O SHIRAHATTI, HUKKERI 19. DURADUNDI RAMAPPA BANGARI MAJOR, 0CC: AGRICULTURE R/O DURADUNDI, GOKAK SINCE DEAD BY LRS 19(A) NINGAPPA DUNADUNDI BANGARI AGE:28 YRS, 0CC: AGRICULTURE R/O DURADUNDI, GOKAK 20. SMT GANGAWWA DUNDAPPA HATTARWAT MAJOR, 0CC: HOUSEHOLD WORK R/O SHIRAHATTI, HUKKERI BELGAUM. RESPONDENTS (BY SRI.SHIVARAJ P. MUDHOL, ADV., FOR Ri, R2 AND R5 SRI. JAGADISH PATIL, ADV., FOR R4, 6, 8, 17, 18 AND 19(A) APPEAL AGAINST R16- ABATED. R7, 9, 10, 11, 12, 13, 14, 15 AND R20 SERVED) - THIMFJ? IS FILED UNDER SECTION 96 OF CPC, A&MNST THE JUDGMENT AND DECREE DATED (17426 O7Y L PASSED IN [CASE NUMBER] (OLD NO.77/1993) ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HUKKERI, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION ETC., THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: -4- JUDGEMENT
An application I.A.No. I filed by appellants seeking condonation of delay of 2,462 days (06 years 272 days) in filing the appeal. Appeal is filed against the judgment and decree passed in [CASE NUMBER] (old No. 77/ 1993) by the Civil Judge (Sr.Dn.), Hukkeri dated 17.4.2000 since there was delay in filing the appeal, application in question has been filed seeking condonation of the said delay.
2. Heard Sri. [ENTITY], learned counsel for appellants and Sri. [ENTITY], learned counsel for respondent Nos. 1, 2 and 5, [ENTITY], learned counsel for respondent Nos.4, 6, 8, 17, 18 and 19(a). Appeal against respondent No.16 has stood abated. Service of notice of other respondents is complete since they are served and are un represented.
3. Appellants herein have questioned the correctness and legality of the judgment and decree passed in [CASE NUMBER] (old No. 77/1993) dated 7.4.2000 by -5- St the Civil Judge (Sr.Dn.), Hukkeri whereunder suit filed by 1st respondent herein came to be decreed in part and it was held that plaintiff and defendant No.1 are entitled for partition and separate possession of 55/168 the share each in Suit Schedule A property and Schedule-B property.
4. Aggrieved by the said order plaintiff i.e. respondent No.1 herein filed an application on 27.7.2000 under [SECTION]/[SECTION] of [ACT] seeking review of judgment and decree passed by trial court. The said review petition came to be dismissed on 6.1.2007 and thereafter present appeal has been filed by appellant herein who was 1st respondent in review petition on 3.4.2007. It is contended by Mr.[ENTITY] that review petition was pending from 2000 to 2007 and immediately on its dismissal within three months thereof certified copy was applied, obtained and on receipt of same appeal in question has been filed on 3.7.2007 and thus delay if any be condoned since appellants were prosecuting the application for review before the trial court in [CASE NUMBER] and as such he seeks for condonation of delay in filing the appeal. He would also submit that sufficient cause has been shown by appellants as required under [SECTION]
the [ACT] and as such he requests the Court to take a liberal view and condone the delay in filing the appeal. In support of his submission he has relied upon the judgment of the Hon'ble Apex Court in the case of [PRECEDENT].
5. Per contra Sri. [ENTITY], learned counsel appearing on behalf of respondent Nos. 1, 2 and 5 has filed statement of objections contending that reasons assigned in the affidavit seeking condonation of delay are false and the original defendant Nos. 1 and 2 passed away and present appellants being the legal heirs of deceased defendant No.1 were not prevented from filing the appeal during the pendency of review petition in [CASE NUMBER] and it was in no way coming in their way of filing of the present appeal and as such delay in filing the appeal should not be condoned as there is no sufficient cause made out to condone the delay and one pleaded Tould not be sufficient cause and as such seeks for rejection of the application
6. Having heard the learned advocates appearing for parties, following question would that arise for my consideration:
"Whether appellants have made out a case to condone the delay of 2,462 days (six years 272 days) in filing the appeal?"
7. The appellants herein are the children of one Sri. [ENTITY] who was the original 1st defendant in [CASE NUMBER] (old No.77/ 1993). Respondent No.1 herein is the plaintiff who had filed the suit for partition and separate possession. The said suit was contested by defendant No.1 by filing detailed written statement by denying the averments made in the suit contesting the suit on merits. After full-fledged trial, suit filed by respondent No.1 herein (plaintiff in [CASE NUMBER]) came to be decreed by judgment and decree dated 7.4.2000.
8. Subsequently, on 27.7.2000 plaintiff i.e. respondent No.1 herein filed an application/petition under [SECTION]ead with [SECTION] of [ACT] seeking review of the judgment and decree passed in [CASE NUMBER] (old No.77/ 1993) contending that calculation of share of plaintiff as well as defendant No. 1, 3 to 6 is improper amongst others. It was also contended therein that plaintiff is to be granted 1/3rd share. Defendant No.1 therein i.e. the father of the appellants herein on service of notice on the review petition appeared and contested the said matter by filing detailed statement of objections on 18.7.2002/ 16.1 2O03 opposing the said review petition and a specific plea was taken which is to the following effect.
"The appellant/plaintiff has not choosen to file any Regular Appeal before competent authority if he is aggrieved by the decree passed in [CASE NUMBER]. Hence, review petition is not maintainable"
9. On this ground amongst others appellants father respondent No.1 in suit and respondent No.1 in review petition who was defendant No.1 and whose children have now filed the present appeal in question had filed the statement of objections and sought for dismissal of the review petition. The review petition has been dismissed on 6.1.2007. These facts are not in dispute.
10. It is the contention of learned counsel for appellants that on account of deceased defendant No. 1 was prosecuting the said [CASE NUMBER] which was pending from 27.7.2000 to 6.1.2007 appellants could not file the present appeal. It is the pendencv of review petition which has been put forward by appellants herein as cause for delay by contending it to be sufficient cause. Thus delay as explained will have to be examined as to whether this would constitute "sufficient cause" as required under [SECTION] of the [ACT]. At this juncture, it would be of relevant to extract the judgment relied upon by learned counsel for appellants in [ENTITY]'s case referred to supra. Same reads as under:
i. Ordinary a litigant does not stand to benefit by lodging an appeal late.
ii. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned at highest that can happen is that a cause would be decided on merits after hearing the parties.
iii. "Every day's delay must be explained"
does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
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iv. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.
v. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
vi. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable to removing injustice and is expected to do so.
11. This judgment in [ENTITY]'s case along with various other judgments of Hon'ble Supreme Court came to be considered, analysed and answered by the Hon'ble Supreme Court in the case of [PRECEDENT] Reported in [CASE NUMBER] and their Lordships have held at paragraph 8 as under:
"We have considered the respective submission. 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.
.4 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. 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 subserves 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], [PRECEDENT] and [PRECEDENT]. 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 4<
- 12 applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not imperrnissible 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], State [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], and [PRECEDENT]."
12. Thus, keeping the contours defined by Hon'ble Supreme Court in both these judgments, the "sufficient cause" which has been pleaded by appellants in the instant case will have to be examined. The words "sufficient case"
is elastic enough to enable the Court apply the law in a meaningful and purposeful manner so that substantial
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justice does not get truncated and the approach of the courts should be liberal which ultimately subserve the ends of justice. In the instant case, appellants have filed the present appeal in question assailing correctness and legality of the judgment and decree passed in [CASE NUMBER] dated 7.4.2000 which means that they are not satisfied with the said judgment and decree passed by trial court and the correctness of it is not accepted by them. In the objections filed to the review petition by deceased 1st defendant on 16.1.2003/18.7.2002 it can be noticed that nowhere 1st defendant says or contends that he is aggrieved by said judgment and decree. Infact when the review was sought for by 1st respondent herein who was plaintiff in the original suit, 1st defendant i.e. the opponent in [CASE NUMBER] i.e. father of appellants herein objected to the review and defended the judgment and decree of trial court passed in [CASE NUMBER]. There is not even a whisper by 1st defendant as to whether there is any grievance with regard to the judgment and decree passed in any manner what so ever. It means that 1st defendant has accepted the judgment and decree passed by trial court and he did not intended to file an appeal.
13. Yet another factor which requires to be noticed is that 1st defendant therein i.e. appellants father knew about the judgment and decree having been passed against him in [CASE NUMBER] even as on the date of filing objections to the review petition i.e. on 16.1.2003/18.7.2002 1st defendant was having full knowledge of judgment and decree passed in [CASE NUMBER] and having not pursued his remedy by filing an appeal or seeking review as was done by plaintiff, 1St defendant or his legal representatives now cannot be permitted to take umbrage under the review petition filed by plaintiff or on the ground that they were prosecuting the review petition filed by plaintiff from 27.7.2000 to 6.1.2007 as cause for not filing the appeal and said cause cannot be construed by any stretch of imagination to be "sufficient cause". 1st defendant being fully aware of the judgment and decree passed against him did not pursue his grievance if any against the same but on the other hand, accepted it by filing objection to review petition and opposed review being allowed. Even in the affidavit supporting the application for condonation of delay appellants have nowhere stated that their deceased father had not accepted the judgment and
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decree passed by trial court on 7.4.2000 in [CASE NUMBER].
14. In these circumstances, it cannot be held that appellants have shown sufficient cause for not filing appeal and the delay being six years 272 days which is inordinate and explanation given in the affidavit supporting the application cannot be held to be "sufficient cause" for condoning the delay and as such application [CASE NUMBER] does not merit acceptance and it is accordingly rejected. Consequently, appeal also stands dismissed. No orders as to costs.
Sd! 3UDGE BS I' 05.12.2012 ORDERS ON "BEING SPOKEN TO"
In the preamble of the order there is a typographical error and it has been mentioned as M.F.A. instead of R.F.A. Same is ordered to be corrected. Registry to correct the autograph accordingly.
The date mentioned in the said preamble has been typed as 17.04.2000 instead of 07.04.2000. These two errors being typographical errors, they are ordered to be corrected. Autograph is also ordered to be corrected.
If the parties have obtained certified copy, Registry to issue fresh copy, if applied free of cost.
TUDGE Rsh