Karnataka High Court
Sri Appasab S/O Basappa Koli vs Sri Parappa S/O Ramappa Terdal on 22 January, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
REGULAR SECOND APPEAL No.100847of 2017 (SP)
BETWEEN:
1. SRI APPASAB S/O BASAPPA KOLI
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: YALAPARATTI-591311,
TQ: RAIBAG, DIST: BELAGAVI.
2. SRI.VASANT S/O BASAPPA KOLI
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: YALAPARATTI-591311,
TQ: RAIBAG, DIST: BELAGAVI.
3. SRI.SHRISHAIL S/O BASAPPA KOLI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: YALAPARATTI-591311,
TQ: RAIBAG, DIST: BELAGAVI.
4. SRI.MAHADEV S/O BASAPPA KOLI
AGE: 44 YEARS, OCC: SERVICE & AGRICULTURE,
R/O: MANJARI-591213,
TQ: CHIKKODI, DIST: BELAGAVI.
.. APPELLANTS
(BY Sri. S.G. KADADAKATTI AND
SRI. A.R. PATIL, ADVS.)
AND:
SRI PARAPPA S/O RAMAPPA TERDAL
AGE: 51 YEARS,
OCC: SERVICE & AGRICULTURE,
R/O: MAISHAL-591311,
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TQ: MIRAJ, DIST: SANGLI,
MAHARASHTRA STATE.
.. RESPONDENT
(BY SRI. ABHISHEK C. PATIL, SRI. A.A. KATTI AND
SRI. ANAND A. SHETTAR, ADVS.)
THIS RSA FILED U/SEC.100 OF CPC, 1908, AGAINST THE
JUDGEMENT & DECREE DTD:03.10.2017 PASSED IN
R.A.NO.16/2016 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, ATHANI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DTD:18.12.2015 PASSED IN O.S. NO.978/2009 ON THE FILE OF
THE II ADDITIONAL CIVIL JUDGE AND J.M.F.C. ATHANI,
DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF
CONTRACT.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission, with the consent of the counsel appearing on both sides, it is taken up for final disposal.
Defendant Nos.1 to 4 aggrieved by the judgment and decree dated 03.10.2017 passed in R.A. No.16 of 2016 by the learned Additional Senior Civil Judge and JMFC, Athani, has filed this second appeal. 3
2. The plaintiff filed a suit in O.S. No.978 of 2009 for specific performance of contract on the ground that defendant No.1 has entered into an agreement of sale on 05.07.2004 and had agreed to sell the suit schedule property for consideration of Rs.1,71,000/-. Out of the said amount, the plaintiff paid a sum of Rs.1,50,000/- as earnest money in the presence of witnesses and defendant No.2 has put his signature on the said agreement as a witness. The plaintiff requested the defendant to execute the registered sale deed but the defendant has refused to execute the sale deed. Defendant No.1, instead of executing a registered sale deed in favour of the plaintiff, got transferred the properties to the name of defendant Nos.2 to 4. The plaintiff got issued a legal notice on 19.06.2007 calling upon defendant No.1 to execute a registered sale deed by receiving the balance consideration amount. The defendant replied to the 4 said notice denying execution of agreement of sale. The plaintiff being constrained, filed a suit for specific performance.
3. On service of summons, defendants appeared and denied the averments made in the plaint and further contended that the father of the defendants' namely Bassappa Satteppa Koli has purchased the suit property in the name of defendant No.1 out of the income derived from the ancestral property. The defendants have asked the plaintiff to give loan. The plaintiff agreed to give loan on the basis of monthly interest, provided that defendant No.1 puts his signature on the bond paper. The plaintiff, taking undue advantage of the confidence of the defendants, colluded with his relative and got created a false document and filed a suit. Hence, sought for dismissal of the suit.
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4. The trial Court on the basis of the pleadings framed the following issues:
"1. Whether the plaintiff proves that the defendant No.1 executed agreement of sale in favour of him on 05.07.2004 in respect of the suit property?
2. Whether the plaintiff proves that, he has been ready and willing to his part of contract?
3. Whether the defendant No.2 proves that the agreement of sale is created document?
4. Whether the plaintiff is entitled for the relief of specific performance as prayed?
5. what order or decree?
5. The plaintiff in order to prove his case examined himself as PW-1 and also examined two witnesses as PWs.2 and 3 and got marked the documents as Exs.P- 1 to P-11. On behalf of the defendants, defendant No.4 was examined as DW-1 and also examined two witnesses as DWs.2 and 3 and did not produce any documents. The trial Court, after considering the pleadings and evidence adduced by the parties, held 6 that the plaintiff has proved that defendant No.1 has executed agreement of sale in favour of the plaintiff on 05.07.2004 in respect of the suit property and further held that the plaintiff was ready and willing to perform his part of contract and that the defendant has failed to prove that the agreement of sale is a created document and consequently decreed the suit of the plaintiff and directed defendant No.1 to execute the registered sale deed in favour of the plaintiff by receiving the balance consideration amount. The defendants aggrieved by the judgment and decree passed by the trial Court filed RA 16 of 2016 before the learned Senior Civil Judge and JMFC, Athani. There was a delay of 34 days in filing the appeal and an application was filed for condoning the delay. The appellate Court has framed the following points for consideration:
1. Whether the appellants/defendants in OS No.978 of 2009 on the file of II Addl. Civil 7 Judge & JMFC, Athani have made out "sufficient Cause" for not preferring this appeal against the judgment/decree dated 18.12.2015 passed in the above said suit within the period of limitation?
2. Whether this is a fit case to condone the delay caused in filing this appeal by the appellants/defendants as stated above?
3. What order?
and held that the defendants have not made out sufficient cause in preferring the appeal against the judgment and decree dated 18.12.2015 passed in O.S. No.978 of 2009.
6. The appeal is admitted on the substantial question of law:
"Whether the lower appellate Court was justified in rejecting the application for condonation of delay without considering the cause shown by the appellants?"8
7. Perused the records. The trial Court passed the judgment and decree on 18.12.2015. The appellants will have to file an appeal within 30 days. In the present case, the appeal has been presented on 20.02.2016. So there is a delay of 34 days in filing the appeal. It is stated that, the appellants are under impression that from the date of obtaining the certified copy of the judgment and decree, the appeal is to be filed and for that reason the appellants could not taken steps to file the appeal well within the time. Further, the appellants are poor and unable to pay the Court fee since P.W.1 unable to pay the Court fee and the appellants are making arrangement for financial support. So for that reason, the delay has been caused in filing the appeal.
8. The Hon'ble Apex Court and this Court in catena of decisions held that application under Section 5 of 9 the Limitation Act should be considered liberally. In the present case, the delay is only 34 days and the lower appellate Court has committed an error in rejecting the application filed by the appellants under Section 5 of the Limitation Act and consequently, dismissing the appeal. The Hon'ble Apex Court in Civil Appeal Nos.9488-9489 of 2019 between University of Delhi Vs Union of India (UOI) and Others held that, "every day's delay must be explained" does not mean that a pedantic approach should be made and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.
9. Considering the law laid down by the Hon'ble Apex Court, this Court feel that the lower appellate Court has committed an error in rejecting the application on the ground that there is no sufficient 10 cause. Accordingly, the substantial question of law is answered in favour of the appellants. Hence, I proceed to pass the following:
ORDER The appeal is allowed. The judgment and decree dated 03.10.2017 passed by the Additional Senior Civil Judge and JMFC, Athani in R.A.No.16/2016 is set aside. I.A.No.I filed by the appellants is allowed. Delay of 34 days in filing the appeal is condoned. The matter is remitted to the lower appellate Court to consider the appeal on merits in accordance with law and pass appropriate orders as expeditiously as possible.
Interim order granted on 16.12.2017 shall in force for a period of ten days. The appellants are at liberty to move an application before the lower 11 appellate Court for consideration of the application and dispose of the same, in accordance with law.
Sd/-
JUDGE Kmv from para 1 to 5 mbs