Karnataka High Court
Marigouda Chanabasappa Marigoudar vs Sattepa Veerappa Koujalagi on 6 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
R
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 06th DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR SECOND APPEAL No.5527/2009 (SP)
BETWEEN:
MARIGOUDA CHANABASAPPA MARIGOUDAR,
AGE : 60 YEARS, OCC : AGRICULTURE,
R/O : MADA BHAVI -591121,
TQ : BAILHONGAL, DIST : BELGAUM.
... APPELLANT
(By Sri. M.G.NAGANURI & SMT. S.V.DESHPANDE, ADVS.)
AND:
SATTEPA VEERAPPA KOUJALAGI
SINCE DECEASED BY HIS LRS
1. SMT. SINGAREWWA W/O SATTEPPA KOUJALAGI
AGE : 68 YEARS, OCC : HOUSEHOLD
R/O : MARKUMBI-591119, TQ : SAUDATTI
DIST : BELGAUM
2. SHRI. MAHANTESH SATTEPPA KOUJALAGI
AGE : 32 YEARS, OCC : AGRICULTURE
R/O MARKUMBI-591119,
TQ : SOUNDATTI, DIST : BELGAUM.
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3. SMT. NIRMALA
W/O NINGAPPA CHACHADI
AGE : 50 YEARS, OCC : HOUSEHOLD
R/O NIRMAL BUILDING, SHIVAGIRI,
DIST : DHARWAD
4. SMT. MAHADEVI
W/O GANGAPPA KURBET
AGE : 47 YEARS, OCC : HOUSEHOLD
R/O : MARKUMBI -591119,
TQ : SOUNDATTI, DIST : BELGAUM
5. SMT. SAVITRI
W/O ISHWAR KOPPAD
AGE : 43 YEARS, OCC : HOUSEHOLD
R/O NEAR MARADI BASAWESHWAR
TEMPLE BAILHONGAL-591102,
DIST : BELGAUM.
6. SMT. CHINNAWA @ SUMA
W/O GIRIDHAR GANACHARI
AGE : 38 YEARS, OCC : HOUSEHOLD
R/O : BELT ROAD, AMBEDKAR CIRCLE
CHIKKAMAGALUR-577101.
7. SMT. SUVARNA
W/O MAHADEV MADWAL
AGE : 35 YEARS, OCC : HOUSEHOLD
R/O : ANKALAGI-591101,
TQ : GOKAK, DIST : BELGAUM
... RESPONDENTS
(By Sri. S S BAWAKHAN &
SRI. V.M.SHEELAVANT, ADVS. FOR R1-R7)
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THIS RSA IS FILED U/S. 100 R/W. ORDER 42 RULE 1
OF CPC., AGAINST THE JUDGEMENT & DECREE DTD:21-
07-2009 PASSED IN R.A.NO.18/2008 ON THE FILE OF THE
PRINCIPAL DISTRICT JUDGE, BELGAUM, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT DTD:10-04-2001
AND THE DECREE PASSED IN O.S.NO.01/1999 ON THE
FILE OF THE CIVIL JUDGE(SR.DN), BAILHONGAL
DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal filed under Section 100 of CPC is directed against the judgment and decree passed in O.S.No.1/1999, which was pending on the file of the Civil Judge (Sr.Dn.), Bailhongal and confirmation of the findings of the O.S.No.1/1999 in regular appeal No.18/2008 filed under Section 96 of CPC read with Order 41 Rule 1 of CPC.
2. Appellant herein was the lone defendant in an original Suit bearing O.S.No.1/1999 filed by the respondents- plaintiff for the reliefs of specific performance of contract based on an agreement of sale stated to have been executed by the defendant in their favour relating to 4 acres 20 guntas 4 of land in respect of R.S.No.102/1 of Madanbhavi village, Taluka Bailhongal for a total consideration of Rs.2,25,000/-. On 06.01.1996 defendant/appellant is stated to have executed an agreement of sale agreeing to sell the entire suit property for a total consideration of Rs.2,25,000/-. In this regard, a sum of Rs.1,00,000/- is stated to have been received as advance on 06.01.1996 in the presence of the attestors who have attested the said document. A sum of Rs.1,25,000/- being the balance of consideration was expected to be paid at the time of registration by the plaintiff to the defendant. Further case of the plaintiff is that, schedule property was handed over to him on the very day of execution of the agreement of sale and therefore, he has been in possession of the property uninterruptedly from that date.
3. As defendant did not come forward to execute a regular sale deed, they had to get a legal notice issued through his advocate on 07.03.1996. In spite of receipt of the notice, the defendant did not come forward to execute a sale 5 deed and therefore, he had to file a suit seeking the relief of specific performance of the contract or alternatively, for refund of Rs.1,00,000/- earnest money paid to the defendant with interest at 24% p.a. from 06.01.1996.
4. Defendant was served with notice and appeared through an advocate and filed his written statement. Plaintiff is examined as P.W.1 and one Shivanagouda Chanabasappa Marigoudar is examined as P.W.2 on his behalf. 4 documents have been got marked. Both the witnesses have not been cross-examined. No evidence is adduced on behalf of the defendant.
5. On hearing the arguments from the learned Counsel for the plaintiff and on analysing the evidence, the learned trial Judge has chosen to decree the suit as prayed for, by answering issues 1 to 5 in the affirmative. Consequently, the suit is decreed as prayed for and relief of specific performance is granted. Against the said judgment and decree, defendant chose to file a petition under Order 9 Rule 13 of CPC with a 6 request to set aside the said judgment on the ground, that the said judgment was an ex-parte decree for all practical purposes, by filing an objection in Misc. No.09.2001. The said petition was dismissed after contest on 15.09.2003, as against which Misc. First Appeal was filed before the Hon'ble High Court of Karnataka in MFA No.6910/2013 and the said appeal was also dismissed after contest on 12.10.2006. A review petition was filed before the Hon'ble High Court of Karnataka with a request to review the said petition. The said review petition was also dismissed on 28.08.2007.
6. After exhausting all the remedies available under Order 9 Rule 13 of CPC at various levels, the defendant chose to file a Regular First Appeal before this Court in RFA No.2181/2007. The said RFA was returned with a direction to re-present the same before the proper forum. Accordingly, the appeal memo was returned to the appellant-defendant and it was presented to the Court of Principal District Judge, Belgaum and appeal came to be numbered as 7 R.A.No.18/2008. Notice was issued to the respondents- plaintiff. An application came to be filed under Section 5 of the Limitation Act requesting the Court to condone the delay of 6 years 4 months 21 days in filing the appeal, vide I.A.No.IV. The said application is supported by an affidavit sworn to by the appellant-defendant.
7. In the meantime, an application came to be filed under Section 151 of CPC on behalf of the plaintiff, with a request to dismiss the appeal as not maintainable, in view of the plaintiff having already exhausted remedies at various levels as contemplated under Order 9 Rule 13 of CPC and other connected provisions of CPC. The said I.A. came to be numbered as I.A.II. An application came to be filed under Order 6 Rule 17 of CPC on behalf of the defendant before the First Appellate Court vide I.A.V with a request to permit him to amend the appeal memo by raising additional grounds. Objections had been filed to all these applications. 8
8. Learned Principal District Judge chose to consider the following points for consideration as found in typed page 4 of the judgment rendered in R.A.18/2008:
i. Whether I.A.No.II filed by the respondents is to be allowed?
ii. Whether I.A.No.IV filed by the appellant is to be allowed?
iii. Whether I.A.No.V filed by the appellant is to be allowed?
iv. Whether the appeal is maintainable?
v. What Order?
9. Ultimately appeal is dismissed by holding that, I.A.No.IV filed under Section 5 of the Limitation Act is liable to be dismissed. At the same time, the learned Principal District Judge has given a clear finding that, the appeal itself is not maintainable in law, because of defendant exhausting the remedies available under Order 9 Rule 13 and other various provisions of CPC at various forums. The operative portion 9 of the order passed in R.A.18/2008 as found in typed page 29 is as follows:
"The appeal filed by the appellant/defendant, under Section 96 CPC is hereby dismissed, with compensatory cost of Rs.10,000/- to be paid by the appellant to the respondents within two months from today.
Consequently, I.A.No.II stands allowed as it is held that appeal is not maintainable.
I.A.No.IV filed by the appellant stands dismissed.
I.A.No.V filed by the appellant also stands dismissed, as it has no consequence."
10. The final order passed by the Principal District Judge, Belgaum dated 21.07.2009 is called in question on various grounds as set out in the appeal memo filed before this Court under Section 100 of CPC.
11. After hearing the learned Counsel for the appellant at the time of admission and after having perused the records and the appeal memo, following substantial question of law is framed for consideration:
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"Whether the First Appellate Court is justified in holding that the appeal filed under Section 96 of CPC read with Order 41 Rule 1 of CPC in R.A.No.18/2008 is not maintainable, by dismissing the I.A. filed under Section 5 of the Limitation Act?
12. Learned Counsel for the appellant has vehemently argued that the learned Principal District Judge could not have held the appeal as not maintainable, when the application filed under Section 5 of the Limitation Act has been dismissed vide I.A.IV. It is his case that, liberal approach should have been adopted by the trial Court and the First Appellate Court in regard to the delay, as the defendant No.1 had an opportunity of availing the provisions of Order 9 Rule 13 of CPC and other connected provisions of CPC, in order to pursue his remedy to get the ex-parte judgment and decree set aside. It is his case that, the Court which dismissed a petition or appeal as time barred, cannot 11 express its opinion either on the maintainability of the appeal or on the merits of the appeal.
13. Learned Counsel for the respondents has vehemently argued that, though the learned Principal District Judge has observed that the appeal is not maintainable in law, since the suit is dismissed on the ground of limitation, more particularly, when there is inordinate delay of six years four months and 21 days. It is further argued that, approach adopted by the First Appellate Court cannot be considered as a pedantic approach, more particularly, when the defendant could have availed both the remedies concurrently, by filing petition under Order 9 Rule 13 of CPC, as also by filing Regular Appeal under Order 41 Rule 1 of CPC. Having not done so, it is argued with force by the learned Counsel for the respondents, that the order of the First Appellate Court cannot be found fault with.
14. After perusing the impugned judgment passed by the First Appellate Court, it appears that, though the appeal 12 is dismissed holding that I.A.IV filed under Section 5 of the Limitation Act is rejected, the learned Judge has considered the aspect of maintainability of the appeal also. The Court before which an application will be filed under Section 5 of the Limitation Act, especially in regard to the condonation of delay in filing of the appeal is concerned, the Court has to show whether the cause shown for condonation of delay is acceptable or not. Considering the question of maintainability or merits will arise only after the delay is condoned and appeal is taken on file. The Court will not get jurisdiction to give its findings on the maintainability of an appeal or about the merits, unless the appeal is taken on file by condoning the delay.
15. In the present case, the learned Principal District Judge has not only dismissed I.A.IV filed under Section 5 of the Limitation Act, on the ground that there is inordinate delay, but also has held that the appeal is not maintainable 13 in law, on the ground that the remedy of filing an appeal is not available to him.
16. What exactly is to be the approach in the matter of condonation of delay has been considered by the Hon'ble Supreme Court at length as reported in AIR 1987 SC 1353 in the case of Collector Land Acquisition vs Mst. Katiji & Ors. Seven broad guidelines have been laid down in the said decision, specifically holding that there should not be a pedantic approach in the matter of delay and delay should be liberally construed, more particularly, when there is merit in the case.
17. Whether there is merit in the case will have to be incidentally considered while looking into the aspect of condonation of delay. Here is a case, in which the defendant has merely relied upon the benefit available under explanation appended to Order 9 Rule 13 of CPC. On a plain reading of the entire provisions of Order 9 Rule 13 of CPC coupled with the explanation appended thereto, it appears 14 that, the person against whom an ex-parte decree is passed can avail the benefit of filing a Regular Appeal under Section 96 of CPC read with Order 41 Rule 1 of CPC and also by filing a petition under Order 9 Rule 13 of CPC concurrently. The said provision would also disclose that, if a party whose appeal filed under Order 41 Rule 1 of CPC read with Section 96 of CPC is rejected, he cannot pursue the remedy available under Order 9 Rule 13 of CPC. The converse of the same is not found in the explanation and therefore, the learned Counsel for the appellant has relied upon the decision of the Hon'ble Supreme Court reported in 2009 (2) SCC 205 in the case of Mahesh Yadav and Another Vs. Rajeshwar Singh and Others. Relying upon the decision reported in 2005 (1) SCC 787 in the case of Bhanu Kumar Jain Vs. Archana Kumar in Mahesh Yadav's case, the Hon'ble Supreme Court has held that, the right of appeal conferred upon a suitor under the provisions of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. Paragraph 28 in Bhanu Kumar's case is extracted 15 in page 209 of the decision rendered in Mahesh Yadav's case and the same is reproduced hereunder:
"28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions."
18. Taking into consideration the events that have followed and the grounds urged in the appeal memo and the connected applications filed under Section 5 of the Limitation Act, it appears that there is an arguable case for the appellant in regard to condonation of delay. The First Appellate Court is more persuaded by the arguments advanced by the learned Counsel for the plaintiff-respondent in regard to the 16 maintainability of the appeal rather than the aspect of condonation of delay. As already discussed, the aspect of condonation of delay should have been considered in its entirety first. From the records, it is evident that the First Appellate Court has not focused its attention more towards the question of condonation of delay. On the other hand, the First Appellate Court has focused its attention more on the aspect of maintainability of the suit and this approach is to be considered as wrong approach to the real state of affairs.
19. Mere delay in availing the remedy itself would not enable the Court to dismiss the application filed for condonation. Whether the grounds urged in the application filed for condonation of delay would be a relevant factor. This Court is of the opinion that the said aspect has not been considered in its right perspective.
20. In fact, the learned Counsel for the appellant has relied upon the decision reported in ILR 2007 KAR 1893 in the case of The State of Karnataka Rep. By Revenue 17 Secretary Vs. H. B. Munivenkatappa in regard to the approach of Courts in the matter of condonation of delay. Relying upon the decision reported in AIR 1987 SC page 1353 in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others and AIR 1988 SC 897 in the case of Ramegowda Vs. The Special Land Acquisition Officer, Bangalore, this Court has held that the Courts will have to consider as to whether the delay is properly explained and whether the delay needs to be condoned by keeping the various aspects of the case sought to be projected. Suffice to state that the First Appellate Court has not considered the question of delay in right perspective and this has occasioned because of its main focus on the question of maintainability. Hence the substantial question of law is answered in the negative.
21. In this view of the matter, the appeal is to be allowed, by remitting the matter to the First Appellate Court in order to consider the question of condonation of delay in 18 right perspective at the earliest and if ultimately the First Appellate Court has to condone the delay, it has all the liberty to consider all other questions, including the question of maintainability.
ORDER Appeal filed under Section 100 of CPC is allowed. The order of the First Appellate Court passed in R.A.No.18/2008 dated 21.07.2009 is set aside. The matter is remitted to the First Appellate Court to consider the question of delay vide I.A.IV in its entirety, by keeping in mind the various parameters laid down by the Hon'ble Supreme Court in the decisions referred to above and to take an appropriate decision. It need not be reiterated that, if the delay is condoned and appeal is taken on file, then only the First Appellate Court will be at liberty to express its opinion, not only on the question of maintainability, but also on the question on merits.
Taking into consideration the facts and circumstances of the case, no order as to costs.
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The learned Principal District Judge, Belgaum to dispose off the appeal as expeditiously as possible.
The parties shall appear before the First Appellate Court on 15.03.2014 without fail and thereafter the learned Principal District Judge to expedite the matter.
In the light of the appeal being remanded, entire Court fee to be refunded to the appellant.
SD/-
JUDGE MBS/gab/-