Karnataka High Court
Parasuram S/O Bharamu Berad @ Naik vs Vinayak S/O Tayappa Kamble on 24 August, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100126 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO. 100126 OF 2021 (SP-)
BETWEEN:
1. SHRI PARASURAM S/O BHARAMU BERAD @ NAIK
AGE 67 YEARS OCC AGRICULTURE
R/O BOMANAL 591317
TQ ATHANI DIST BELAGAVI
...APPELLANT
(BY SRI. BALAGOUDA A PATIL, ADVOCATE)
AND:
1. SHRI VINAYAK S/O TAYAPPA KAMBLE
AGE. 36 YEARS, OCC. AGRICULTURE,
R/O. MADABHAVI 591232
TQ. ATHANI, DIST. BELGAVI
...RESPONDENT
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
THIS APPEAL IS FILED UNDER SEC. 96 OF CPC. R/W ORDER
XLI RULE 23 AND 25 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 22.11.2018 PASSED IN O.S.NO.38/2012 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, ATHANI, DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 100126 of 2021
JUDGMENT
Heard learned counsel for the appellant and learned counsel for the respondent.
2. Application in I.A.No.1/2021 is filed under Section 5 of the Limitation Act to condone the delay of 422 days in filing the appeal along with better affidavit dated 17.04.2021. Better affidavit dated 30.03.2022 is also filed.
3. Counsel for the appellant submits that the delay has been explained in the affidavit stating that the trial Court counsel failed to cross-examine P.Ws.2 and 3 and cross-examined P.W.1 partly and not led oral or documentary evidence in his support which resulted in decreeing of the suit. It is also sworn to the affidavit that he is unaware of the disposal of the original suit as his trial Court counsel has not intimated about the disposal. The other reason given in the affidavit is that when he came to know about the disposal, he tried to collect the court fee, -3- RFA No. 100126 of 2021 being an agriculturist and due to draught in the area, the delay has been caused.
4. Counsel also filed better affidavit of the appellant dated 30.03.2022, wherein also same reason has been assigned regarding his financial difficulty, mobilizing fund for payment of court fee and there was no willful negligence on his part.
5. Counsel appearing for the respondent has filed statement of objections in detail, wherein he contends that the facts sworn in the affidavit filed by appellant are not true facts and first of all there is delay of 877 days and appeal was filed on 17.04.2021 and judgement and decree was passed on 22.01.2018 and only in order to gain sympathy a false affidavit is sworn to and the same is against the material on record and each day delay has not been explained. Counsel also filed separate objections to the better affidavit and contended that nowhere in the affidavit filed earlier and also in the better affidavit, the date of knowledge of the decree has not been stated and -4- RFA No. 100126 of 2021 counsel would submit that on 27.09.2018 itself counsel appearing for the appellant before the trial Court has filed memo for retirement along with postal receipt and the same has been accepted by the trial Court and hence it is clear that before retiring notice was given to the appellant and inspite of the same, he has not taken any steps either to appear in person or to engage a new counsel and intentionally he did not contest the matter and he kept quite and hence the reasons assigned in the affidavit and also in the better affidavit does not explain each day delay and hence the same cannot be accepted.
6. Counsel for the appellant in support of his argument, has relied upon the order passed in RSA No.5440/2012, wherein Co-ordinate Bench of this Court in para No.13 referring to the judgement in Chidanandappa's case in RSA No.5776/2013 condoned the delay observing that the trial Court has committed serious error in adopting a pedantic approach in dismissing the application for condonation of delay. -5- RFA No. 100126 of 2021
7. Per contra, counsel for respondent/plaintiff vehemently contend that the Apex Court in judgement reported in AIR 2022 SC 332 in the case of Majji Sannemma alias Sanyasirao vs. Reddy Sridevi in para No.7.4, has categorically held that 'sufficient cause' cannot be liberally interpreted if negligence, inaction or lack of bonafides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. Further, it is observed that in case a party has acted with negligence, lack of bonafides or there is an inaction, then there cannot be any justified ground for condoning the delay even by imposing conditions. It is further observed that each application for condonation of delay has to be decided within the framework laid down by this Court. If no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. -6- RFA No. 100126 of 2021
8. He also relied upon a judgement of Division Bench of this Court reported in 2018 (4) AKR 690 in the case of Smt.Parvathamma and Others vs. Smt.Jayamma and Another, wherein also it is held that plea of defendants that their advocate did not inform them regarding disposal of suit for partition and separate possession and it came to their knowledge only after proclamation notice was issued. It is observed that parties required to be diligent in prosecution of proceedings and duty is cast on parties to enquire with their legal counsel regarding progress of proceedings.
9. Counsel also relied upon judgement of Division Bench reported in AIR 2019 KAR 119 in the case of Lokappa S/o Dhakappa Kashenavar vs. Smt.Shekavva W/o Tirkappa Meghani and Another, wherein also with regard to sufficient cause is concerned while not condoning the delay of 696 days in filing the appeal, it is held that the appellant was suffering from hypertension and arthritis not found to be true and -7- RFA No. 100126 of 2021 bonafide and appellant would have filed appeal in time if he had really suffered by judgement and decree. It is further held that in absence of sufficient cause, delay not liable to be condoned.
10. Having heard the respective counsel and also on perusal of the material available on record, admittedly there is no dispute with regard to the fact that suit was decreed on 22.01.2018 and also the defendant/appellant contested the matter representing through counsel and counsel appearing for respondent/plaintiff brought to the notice of this Court that the counsel was retired from the case after giving notice to the present appellant herein and the very contention that counsel did not inform about the disposal of the case and not cross-examined the witness cannot be accepted when the counsel himself has retired from the case after giving notice to the appellant and it is not the contention of the appellant that no such notice was given and not denied even issuance of notice and hence, it is clear that first affidavit is filed before the Court along -8- RFA No. 100126 of 2021 with application for condonation of delay making an allegation against the counsel and hence, judgment of Division Bench in Parvathamma's case is aptly applicable to the case on hand, wherein it is held that it is the party who should be diligent but in the case on hand party is not diligent inspite of service of notice by the counsel who was representing before the trial Court and the appellant did not take any steps to engage a new counsel or continue the same counsel. Apart from that a false ground is taken in this appeal that counsel has not contested the matter and not informed the same and he kept quite and the judgement of the Apex Court referred supra in the case of Majji Sannemma in para 7.4 which has been referred above, it is very clear that 'sufficient cause' cannot be liberally interpreted if negligence, inaction or lack of bonafides is attributed to the party and in case a party has acted with negligence, lack of bonafides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. In the -9- RFA No. 100126 of 2021 case on hand, there is lack of bonafides on the part of the appellant and inaction on the part of the appellant and also there was negligence and hence he has not contested the matter and inspite of receipt of notice from the earlier counsel he did not take any steps and no sufficient cause is explained in the affidavit.
11. It is also important to note that this Court also given an opportunity to file a better affidavit and no doubt better affidavit is also filed and on perusal of the same, nothing is mentioned in the better affidavit except reiterating the grounds of having difficulty to arrange for court fee and stated there is no willful negligence on his part. Having considered the reasons assigned in the better affidavit, the same has not been explained properly and sufficient cause has not been shown by the appellant inspite of opportunity is given and hence, I do not find any reasons to condone the delay. Hence, I.A.No.1/2021 seeking condonation of delay of 422 days in filing the
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RFA No. 100126 of 2021 appeal is liable to be dismissed and accordingly the same is dismissed. Consequently, the appeal is also dismissed.
Sd/-
JUDGE SH