Karnataka High Court
Vaijinath Died By Lrs vs The State Of Karnataka on 22 January, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS SECOND APPEAL NO.200115/2017 (LA)
BETWEEN:
1. Vaijinath since deceased through LR's
1a) Bhagirithi Bai W/o Late Vaijinath
Age: 69 Years, Occ: Agriculture & Labour
R/o Koudgaon, Tq: Aurad - B, Dist: Bidar
1b) Shankar S/o Late Vaijinath
Age: 33 Years, Occ: Agriculture & Labour
R/o Koudgaon, Tq: Aurad - B, Dist: Bidar
2. Kashinath S/o Mahadappa
Age: 72 Years, Occ: Agriculture & Labour
R/o Koudgaon, Tq: Aurad - B, Dist: Bidar
3. Bhimanna since deceased through LR's
3a) Channamma S/o Late Bhimanna
Age: 52 Years, Occ: Agriculture & Labour
R/o Koudgaon, Tq: Aurad - B, Dist: Bidar
3b) Baswaraj S/o Late Bhimanna
Age: 51 Years, Occ: Agriculture & Labour
R/o Koudgaon, Tq: Aurad - B, Dist: Bidar
3c) Sunil S/o Late Bhimanna
Age: 50 Years, Occ: Agriculture & Labour
2
R/o Koudgaon, Tq: Aurad - B, Dist: Bidar
... Appellants
(By Smt. Hema L. Kulakarni, Advocate)
AND:
The State of Karnataka
Through Special Land Acquisition Officer
Karanja Project, Bidar
... Respondent
(By Smt. Archana P. Tiwari, AGA)
This Miscellaneous Second Appeal is filed under
Section 54 (2) of LA Act, praying to, set aside the
judgment and decree dated 15.02.2017 passed in
M.A.No.66/2015 by the Principal District and Sessions
Judge at Bidar confirming the judgment and award dated
23.03.2011 passed in LAC No.10/2010 passed by Principal
Senior Civil Judge Bidar and consequently allow the appeal
filed by the appellants, by granting compensation of
Rs.2,20,000/- per acre along with statutory benefits.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
This appeal is directed against the impugned judgment and award dated 15.02.2017 passed in Miscellaneous Appeal No.66/2015 by the Principal District and Sessions Judge at Bidar, whereby the appeal filed by the appellants was dismissed as barred by limitation. 3
2. Though the matter is listed for admission, with the consent of both sides, the matter is taken up for final disposal.
3. The brief facts giving raise to the present appeal are as follows:-
The appellants filed claim petition in LAC No.10/2010 before the reference Court seeking enhancement of compensation awarded in their favour in respect of acquisition of the year 2007-08. The reference Court partly allowed the reference and awarded additional compensation in favour of the appellants. Aggrieved by the quantum of compensation awarded in favour of the appellants, they preferred an appeal in M.A.No.66/2015 seeking enhancement of compensation. The judgment and award passed by the reference Court was dated 23.03.2011 and the appeal in M.A.No.66/2015 was preferred by the appellants on 19.02.2015, after a period of 1385 days. Along with the appeal, the appellants also filed an application under Section 5 of the Limitation Act 4 seeking condonation of delay in preferring the appeal. By the impugned judgment and award, the lower appellate Court rejected the application under Section 5 of the Limitation Act and consequently, dismissed the appeal filed by the appellants. Aggrieved by the same, the appellants are before this Court.
4. I have heard the leaned counsel for the appellants as well as the learned Additional Government Advocate for the respondent. It was contended that after passing of the judgment and award by the reference Court, appellants had left the village and shifted their residence at Hyderabad for doing casual labour work. It was also contended that appellant Nos.1 and 3's health got deteriorated and they had to undergo treatment for jaundice and cancer and after a long illness appellant No.3 died on 25.10.2012 and thereafter appellant No.1 died on 08.12.2014. It was further contended that their counsel had not informed them with regard to their right to prefer an appeal before the lower appellate Court. It was only 5 after 21.11.2014 when the appeals filed by the State were disposed of by the Division Bench of this Court in MFA No.30830/2013 C/w MFA No.33061/2013 and MFA No.33062/2013, appellant No.2 realized that it was necessary for him to challenge the order of the reference Court by preferring an appeal before the lower appellate Court.
5. The appellants have also contended that due to ill health of appellant Nos.1 and 3 and poverty, they could not prefer the appeal well within time. Since they were incapable to pay requisite Court fee on the memorandum of appeal before the lower appellate Court, it was not possible for the appellants to prefer the appeal within the prescribed period. It was contended that inability and omission on the part of the appellants to prefer the appeal before the lower appellate Court, within time was due to bona fide reason, unavoidable circumstances and sufficient cause. It was submitted that the appellants have good case to urge on merits and that the balance of convenience 6 was in their favour. The delay in preferring the appeal was wholly unintentional and bona fide in nature. As such, it was necessary that an opportunity be granted in favour of the appellants to prosecute the appeal before the lower appellate Court on merits by condoning the delay in preferring the appeal.
6. The lower appellate Court by the impugned judgment and award came to the conclusion that the delay of 1385 days in preferring the appeal was long and inordinate. Since no sufficient cause was shown by the appellants for condoning the delay, the application filed under Section 5 of the Limitation Act was liable to be rejected. Consequently, the lower appellate Court proceeded to dismiss the appeal filed by the appellants as barred by limitation.
7. I have given my anxious consideration to the rival submissions and perused the material on record. 7
8. The aforesaid facts and circumstances that emerged from the material on record would clearly establish that the unimpeached contention of the appellants with regard to ill health of appellant Nos.1 and 3, shifting of the residence of appellants to Hyderabad and their financial status which did not allow them to prefer appeal within prescribed period etc., would clearly indicate that the lower appellate Court adopted a hyper technical approach in rejecting the application for condonation of delay and thereafter dismissing the appeal as barred by limitation. It is well settled that while dealing with an application for condonation of delay, the Courts should adopt a justice oriented and liberal approach to the matter and should not adopt a technical/hyper technical approach to the same. It is equally well settled that rules of procedure and technicalities should not be used as a tripping mechanism to deprive parties of their valuable legal rights. Under these circumstances, I am of the opinion that the lower appellate Court has acted illegally and with material irregularity in exercise of its jurisdiction 8 in rejecting the application for condonation of delay filed by the appellants without appreciating the material on record, which clearly establishes that the delay in preferring the appeal by the appellants was due to bona fide reason, unavoidable circumstances and sufficient cause. I am therefore of the view that in the interest of justice, an opportunity is to be afforded in favour of the appellants to prosecute the appeal before the lower appellate Court on merits by setting aside the impugned judgment. It is however made clear that since the appeal was preferred after delay of 1385 days, in the event the appellants succeed before the lower appellate Court in getting enhanced compensation, the appellants would not be entitled to interest on the enhanced amount for the said period of 1385 days.
9. In view of the aforesaid discussion, I pass the following:
ORDER The appeal is hereby allowed.9
The impugned judgment and award dated 15.02.2017 passed in M.A.No.66/2015 by the Principal District and Sessions Judge at Bidar is hereby set aside.
I.A.No.I filed by the appellants in M.A.No.66/2015 for condonation of delay before the lower appellate Court stands allowed.
The appeal in M.A.No.66/2015 is hereby restored to the file of the lower appellate Court, which is directed to take up the matter on merits and dispose of the same.
All the rival contentions between the parties are hereby left open.
It is made clear that in the event the appellants succeed in getting enhanced compensation before the lower appellate Court in M.A.No.66/2015, the appellants would not be entitled to interest for a period of 1385 days on the enhanced amount, if so, awarded by the lower appellate Court.
*The appellants are entitled to refund of court fee paid before this Court in terms of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958.
Sd/-
JUDGE RSP *Page No.9 is corrected and replaced vide Court order dated 22.01.2020 10 SRKKJ: MSA No.200115/2017 22.01.2020 ORDER ON 'BEING SPOKEN TO' This Court has disposed of the present appeal on 06.01.2020 by allowing the appeal and setting aside the judgment and award dated 15.02.2017 passed in M.A.No.66/2015. But, due to oversight and inadvertence, the judgment does not disclose that the appellants are entitled to refund of court fee in terms of Section 64 of the Karnataka Court-Fees and Suits Valuations Act, 1958, since the matter has been remanded.
Accordingly, the correction should be made in the operative portion of the judgment dated 06.01.2020 by inserting the following sentence:
"The appellants are entitled to refund of court fee paid before this Court in terms of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958."
Office is directed to issue fresh certified copy after making necessary corrections.
Sd/-
JUDGE LG