Karnataka High Court
Ratan Laxmansa Kabadi vs Sri.Anant Narayanrao Teragundi on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14882-DB
RFA No. 100506 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100506 OF 2019 (DEC/INJ)
BETWEEN:
RATAN LAXMANSA KABADI
S/O. LATE LAXMANSA KABADI,
AGED AOBUT: 59 YEARS,
OCC: BUSINESS AND AGRI.,
R/O: GUAMABA DEVELOPERS,
NARAYANPUR, DHARWAD-580001.
...APPELLANT
(BY SRI. ANKIT DESAI AND SRI. N.DINESH RAO, ADVOCATES)
AND:
1. SRI. ANANT NARAYANRAO TERAGUNDI
S/O. NARAYANRAO TERAGUNDI,
AGED ABOUT: 63 YEARS,
OCC: RETIRED ENGINEER,
R/O: NO.1098, ADARSHA LAYOUT,
Digitally
signed by K M
WEST OF CHORD ROAD,
KM
SOMASHEKAR
Location:
HIGH COURT
OF
IST BLOCK, III STAGE,
SOMASHEKAR KARNATAKA
DHARWAD
BENCH
Date:
2023.12.21
BENGALURU-560079.
12:00:23
+0530
2. SMT. USHA ALIAS LEELA
W/O. MADHAV NAIK,
AGED ABOUT: 58 YEARS,
OCC: HOUSEHOLD DUTIES,
R/O: NO.MIG.219, C/O. S.S. DESAI,
NAVANAGAR, HUBBALLI-580025.
3. SMT. LEELA W/O. MADHU NAIK
AGED ABOUT: 66 YEARS,
R/O: NO.44, MYSORE BANK COLONY,
FRAZER TOWN, BENGALURU-560005.
4. SMT. P. ANURADHA W/O. MADHAV NAIK
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NC: 2023:KHC-D:14882-DB
RFA No. 100506 of 2019
AGED ABOUT: 52 YEARS,
R/O: 96/3, G1 STREET,
HAL IIIRD STAGE,
JEEVAN BHEEMA NAGAR,
BENGALURU-560008.
5. THE SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR,
D.C.COMPOUND, DHARWAD-580001.
SRI. SHESHAGIRI NARAYAN RAO TERAGUNDI
SINCE DECEASED BY LRS,
6. SMT. VAIJAYANTHIMALA
W/O. SHESHAGIRI TERAGUNDI,
AGED: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NO.338/5, III A MAIN ROAD,
A SECTOR, YELAHANAKA NEW TOWN,
BENGALURU-560064.
7. SMT. ARATI
W/O. PRADEEP NARASHIMHAMURTHY,
AGED: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: NO.338/5, III A MAIN ROAD,
A SECTOR, YELAHANAKA NEW TOWN,
BENGALURU-560064.
8. KUM. ROOPA
D/O. SHESHAGIRI TERAGUNDI
AGED: 32 YEARS,
OCC: HOUSE HOLD WORK,
R/O: NO.338/5, III A MAIN ROAD,
A SECTOR, YELAHANAKA NEW TOWN,
BENGALURU-560064.
9. ARAVIND
S/O. NARAYANRAO TERAGUNDI
AGED ABOUT: 56 YEARS,
OCC: BUSINESS.
R/O: NO.356, BEML LAY OUT,
BASAVESHWARANAGAR,
BENGALURU-560079.
10. NAGARAJ
S/O. NARAYANRAO TERAGUNDI
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NC: 2023:KHC-D:14882-DB
RFA No. 100506 of 2019
AGED ABOUT: 54 YEARS,
OCC: DOCTOR,
R/O: NO.82, III CROSS,
GANGOTHRI LAY OUT,
MYSORE-570006.
11. SHRIKANT
S/O. NARAYANRAO TERAGUNDI
AGED ABOUT: 50 YEARS,
OCC: CENTRAL GOVERNMENT EMPLOYEE,
R/O: NO.2-1-434/1/B, STREET NO.4,
NALLAKUNTA, HYDERABAD-500044.
12. SMT. JAYASHREE W/O. RAMAMOHAN
AGED ABOUT: 51 YEARS,
OCC: CENTRAL GOVERNMENT EMPLOYEE,
C/O. SAI, NO.83, NETAJI SUBHAS
SOUTHERN CENTER QUARTER,
BENGALURU-560066.
13. SMT. PRATHIMA W/O. MANJUNATH TIWARI
AGED ABOUT: 58 YEARS,
OCC: NOT KNOWN,
R/O: NO.12;11-5, II CROSS,
KRISHNAYYA GARDEN,
COX TOWN, BENGALURU-560005.
...RESPONDENTS
(BY SRI.GURUDEV I. GACHCHINAMATH, ADV. FOR R1, 2, 6 TO 12;
SRI.V.S.KALASURMATH, HCGP FOR R5;
NOTICE TO R4 IS DISPENCED WITH V/O DATED 04.12.2023)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF
CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED
29.07.2016 PASSED IN O.S.NO.88/2008 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,
DHARWAD, BY PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
H.P. SANDESH, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:14882-DB
RFA No. 100506 of 2019
JUDGMENT
Heard the appellant's counsel and also the counsel for the respondents.
2. I.A.No.1/2019 is filed seeking condonation of delay of 1103 days. There is a delay of 1103 days in filing the above appeal. In support of the application, an affidavit is sworn to by the appellant stating that on the advice of his counsel, he filed O.S.No.432/2009 on 22.07.2009 and the Court has granted an order of status- quo. During 2014, since he was not getting any information from the counsel, he engaged another counsel after obtaining no-objection from the previous counsel. The new counsel assured him that he would keep him informed and that he will have to attend the court only when it is posted for evidence. Initially every now and then, the counsel used to inform the date of hearing to him and he was under the bonafide impression that his counsel would inform about the development of the suit. -5-
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3. It is also further sworn to that during May- 2019, respondent No.1 initiated proceedings before the Assistant Director of Land Records and in July-2019 he was informed about the same by one of his friend who had gone to the office of the ADLR and having learnt about the proceedings initiated by respondent No.1, immediately on 11.07.2019, he filed objection before the ADLR stating that the suit relating to subject land is pending consideration before the Civil Court and as such the authority should not proceed with the matter. However, the clerk in the office of the ADLR informed him that the suit has been decreed in favour of respondents No.1 and 2 way back in the year 2016. Shocked by the information, he rushed to his counsel and counsel pleaded ignorance and he gave evasive reply and later on he learnt that the suit was dismissed for non-prosecution on 02.09.2016 and the suit filed by respondents No.1 and 2 has been decreed in their favour on 29.07.2016.
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NC: 2023:KHC-D:14882-DB RFA No. 100506 of 2019
4. It is also sworn to the affidavit that in the meantime, he has received the notice on 22.08.2019 from the office of the ADLR and thereafter he contacted another counsel and got the application filed before the trial Court and obtained the certified copy of the judgment and decree and simultaneously on the advice of the counsel filed further objection on 20.09.2019 before the ADLR. Upon receipt of the certified copy of the judgment and decree, he contacted the counsel and requested him to prefer an appeal before this Court against the judgment and decree. For the reasons stated in the affidavit accompanying application, the delay has caused and the delay is not intentional and the same is bonafide and he was not informed by the counsel who was on record and hence the delay may be condoned.
5. Counsel in support of his argument, relied upon the judgment of the Apex Court reported in 2023 SCC Online SC 1278 decided on 09.10.2023 and the counsel referring to judgment would contend that it must be -7- NC: 2023:KHC-D:14882-DB RFA No. 100506 of 2019 grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so and 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.
6. Referring to this judgment, he would contend that substantial justice has to be done and not on technicalities.
7. Per contra, learned counsel for the respondents has filed statement of objections and contends that the appellant has made a false statement before the Court and has made a deliberate effort to mislead the Court. He has urged before the Court as though he had no touch with the advocate nor his advocate contacted him, therefore he seeks for condonation of delay. Counsel would submit that the suit is decreed on 29.07.2016 and on 21.11.2017 he -8- NC: 2023:KHC-D:14882-DB RFA No. 100506 of 2019 has executed vakalath in RFA No.100383/2017 and he has engaged the services of the very same advocate who was appearing for him in the suit in O.S.No.88/2008 before the trial Court. Further, he has also obtained bail in Crl.Misc.No.260/2018 engaging the services of the very same advocate and hence he was in touch with his advocate on regular basis. The appellant has made a false statement to this Hon'ble Court stating that his counsel did not intimate him regarding the further progress and his counsel has ignored him and also gave evasive replies are all far from truth.
8. Counsel in support of his contention, produced the copy of the vakalath dated 21.11.2017 which was given in RFA No.100383/2017 and also the order passed in Crl.Misc.No.260/2018 dated 10.05.2018 and contend that the very averment made in the affidavit is far from truth and he was having regular touch with the very same counsel and hence the averment made in the affidavit is not true.
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9. Counsel in support of his argument, relied upon the judgment of the Hon'ble Apex Court in SLP(C) No.15793/2019 decided on 31.01.2023 and brought to notice of this Court para No.5, wherein it is observed that the belated appeals can only be condoned when sufficient reason is shown before the Court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the Courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. There was 254 days delay and the same was not condoned by the High Court and the same was challenged before the Apex Court. The order passed by the High Court not condoning the delay of 254 days was affirmed by the Appellate Court.
10. He also brought to the notice of this Court para No.10, wherein the Apex Court has taken note of Section 5 of the Limitation Act and also para No.21 of the judgment
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NC: 2023:KHC-D:14882-DB RFA No. 100506 of 2019 of Apex Court reported in (1977) 4 SCC 69, wherein the matter is considered with regard to the delay is concerned.
11. Having heard both counsel and also on perusal of the affidavit, it is stated that the advocate who was on record did not inform the same and the fact remains that the very same appellant engaged the counsel who was representing before the trial Court in 2017 also even after the dismissal of the present suit and also the appellant has approached the very same advocate for obtaining the bail order which has been annexed along with the statement of objections.
12. When such objections are raised by the respondents and very averment made by the appellant that he was not having knowledge about the dismissal of the suit cannot be accepted and he was in continuation touch with the advocate who was on record before the trial Court. No doubt, before this Court the appellant has engaged a new counsel. The same cannot be a ground to
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NC: 2023:KHC-D:14882-DB RFA No. 100506 of 2019 comes to a conclusion that he was not intimated about the progress of the suit.
13. There is a delay of 1103 days in filing the above appeal and the reasons assigned in the affidavit in support of the application are not satisfactorily explained and he was in touch with the very same advocate and the very averment in the affidavit falsifies the case of the appellant with regard to the fact that he came to know about the dismissal of the suit subsequently and the same cannot be accepted.
14. Statement of objections fortifies the contention of the respondents that the appellant was in touch with the very same advocate and false averments are made in the affidavit. When such being the case, the reasons assigned in the affidavit cannot be accepted since there is an inordinate delay. The Apex Court has also held that pedantic approach cannot be made and at the same time reason for delay of each day has to be explained and the same has not been explained. Though averment is made
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NC: 2023:KHC-D:14882-DB RFA No. 100506 of 2019 with regard to the delay, the same is not acceptable and the very ground urged is far from truth and hence we do not find any ground to condone the delay of 1103 days in filing the appeal.
15. Hence, I.A.No.1/2019 is rejected. Consequently, the appeal is also dismissed.
Sd/-
JUDGE Sd/-
JUDGE SH List No.: 1 Sl No.: 11