Karnataka High Court
Siddappa S/O Basappa Korar And Ors vs Ramappa S/O Basappa Korwar And Ors on 28 September, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA NO.200006/2021
BETWEEN
1 . SIDDAPPA S/O BASAPPA KORAR
AGE: 64 YEARS, OCC. AGRICULTURE,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
2 . SUMITRA W/O MALLAPPA KORWAR
AGE: MAJOR, OCC. HOUSE HOLD WORK,
S R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
3 . MAHESH S/O MALLAPPA KORWAR
AGE: 25 YEARS, OCC. AGRICULTURE,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
4 . SUDHARANI @ RAJESHWARI
D/O MALLAPPA KORWAR
AGE: 20 YEARS, OCC. HOUSEHOLD,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
5 . ROOPA D/O MALLAPPA KORWAR
AGE: MAJOR, OCC. HOUSE HOLD,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
6 . DEEPA D/O MALLAPP KORWAR
AGE: MAJOR, OCC. HOUSEHOLD,
R/O MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
...APPELLANTS
(BY SRI NAGANAND, SENIOR COUNSEL FOR
SRI RAVINDRA REDDY, ADVOCATE)
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AND
1 . RAMAPPA S/O BASAPPA KORWAR
AGE: 54 YEARS, OCC. AGRICULTURE,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
2 . LAXMAN S/O BASAPPA KORWAR
AGE: 51 YEARS, OCC. AGRICULTURE,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
3 . THE SPECIAL LAND ACQUISITION OFFICER
ALMATTI, TQ. AND DIST. BAGALKOT.
4 . GANGAVVA W/O BASAPPA KORWAR
AGE: 86 YEARS, OCC. HOUSEHOLD WORK,
R/O. MAMADAPUR, TQ. AND DIST. VIJAYAPURA.
5 . LAXMIBAI W/O BASAPPA HARNAL
AGE: 56 YEARS, OCC. HOUSEHOLD WORK,
R/O. KUMATAGI, TQ. AND DIST. VIJAYAPURA.
6 . SHASHIKALA W/O ASHOK HARANAL
AGE: 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. KUMATAGI, TQ. VIJAYAPURA.
7 . GEETA W/O LAXMAN KORWAR
AGE: 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. DARGA JAIL, VIJAYAPURA.
...RESPONDENTS
(BY SRI MANVENDRA REDDY AND
SRI NARENDRA REDDY, ADVOCATES FOR R1;
R3 & R4 SERVED, NOTICE TO R2, R5, R6 & R7 IS
DISPENSED WITH)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 12.02.2016 PASSED IN R.A.
NO.40/2014 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE
AT.VIJAYAPURA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 18.03.2014 PASSED IN
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O.S. NO.291/2003 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE, BIJAPUR AT BIJAPUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by defendants Nos.1, 3(a) to (e) aggrieved by the Judgment and Order dated 12.02.2016 passed in R.A.No.40/2014 on the file of Principal District Judge, Vijayapura, (referred to as 'First Appellate Court') by which the First Appellate Court while dismissing the regular appeal filed by the appellants confirmed the judgment and decree dated 18.03.2014 passed in O.S.No.291/2003 on the file of II Additional Senior Civil Judge, Vijayapur (hereinafter referred to as 'trial Court').
2. The parties are referred to by their rank before the trial Court.
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3. The brief facts of the case are that the plaintiffs filed the above suit seeking relief of partition and separate possession and alternatively, reopening the partition by holding that the earlier partition was unfair, unjust and unequal. It is the case of the plaintiff that landed properties bearing R.S. Nos.229/1, 229/2, 229/3 all equally measuring 03 acres 35 guntas, R.S.No.229/4 measuring 04 acres, R.S.No.350/2 measuring 08 acres and R.S.No.335/2 measuring 09 acres 12 guntas situated at Mamadapur village, Bijapur taluk are the ancestral joint family properties. That the plaintiff and Defendant Nos.1 to 3 constituted Hindu Joint Family. Since Defendant No.1 is the eldest, he was acting as a Manager of the family. They are still in joint possession and enjoyment of the suit properties as there was no partition taken place. That since Defendant Nos.1 to 3 were causing obstructions to the plaintiffs joint possession in so far as R.S.No.229 and R.S.No.353/2 are concerned, suspecting the intentions of the Defendants, plaintiffs secured the revenue records and 5 learnt that Defendant Nos.1 to 3 had mischievously obtained mutation entry No.5505 dated 10.06.1999 in their name behind his back taking undue advantage of his blindness. That R.S.No.229 is acquired by Defendant No.4 for canal under Upper Krishna Project and the compensation amount is awarded and therefore, Defendant Nos.1 to 3 by virtue of illegal entries, are preventing the plaintiff from taking his share. Therefore, he requested Defendant Nos.1 to 3 to allot to his 1/4 th share which was declined. He further contends that if in the event it is held that there was a partition as per the mutation entry No.5505, in such circumstances, the Court to grant alternative relief of declaration that such partition was unfair, unjust and detrimental to the interest of plaintiff. Hence, the suit.
4. Defendant Nos.5 to 8 were placed exparte. Defendant Nos.1 to 3 appeared through their counsel. Defendant Nos.1 and 3 filed written statement denying the 6 plaint averments. It is contended that the suit properties are not the joint family properties. They are the self- acquired properties of Basappa, the father of the plaintiffs and Defendant Nos.1 to 3. That the said father of the plaintiff and Defendant Nos.1 to 3 being exclusive owner of all the suit properties and all the sons were working under his instructions in order to support their families. Hence, sought for dismissal of the suit. Defendant No.2 in his written statement admitted the relationship and contended that the suit properties are the self-acquired properties of their father Basappa, who had effected partition amongst plaintiff and Defendant Nos.1 to 3 during the year 1999, in terms of which, 03 acres 35 guntas out of R.S.No.229/1 and 03 acres 35 guntas out of R.S.No.229/2 allotted to the share of Defendant No.3-Mallappa. 03 acres 35 guntas out of R.S.No.229/3, 04 acres out of R.S.No.229/4 was allotted to the share of Siddappa-Defendant No.1. 08 acres in R.S.No.350/2 was allotted to the share of Ramappa - the plaintiff. 09 acres 12 guntas in R.S.No.353/2 was 7 allotted to the share of Laxman - Defendant No.2 and Form House in Survey No.229/4 was equally divided between Mallappa - Defendant No.3 and Siddappa - Defendant No.1. Their father Basappa and mother Gangavva have taken two house properties, cash and gold in lieu of their share. That after the partition, a Wardhi was made. Accordingly, mutation entry No.5505 was entered and certified which is binding on the plaintiff. Hence, sought for dismissal of the suit.
5. Based on the pleadings, Trial Court framed issues and recorded evidence. On appreciation of pleading and evidence, the Trial Court decreed the suit of the plaintiffs holding that he is entitled for 1/7th share in the suit properties by its Judgment and Decree dated 18.03.2014. Thus, being aggrieved by the aforesaid judgment and decree of the trial Court, the Defendant Nos.1 and 3(a) to (e) being legal representatives of Defendant No.3, filed appeal in R.A.No.40/2014 on the file 8 of the First Appellate Court. The First Appellate Court by its Judgment and Decree dated 12.02.2016 impugned in this appeal, confirmed the Judgment and Decree of the Trial Court.
6. Along with the appeal, the appellants have filed an application in I.A.No.1/2021 seeking condonation of delay of 1411 days in filing the appeal. In the affidavit dated 22.01.2021 filed along with the application, it is contended that the land in Survey No.229/1+2 measuring 02 acres 22 guntas belonging to deceased Mallappa- Defendant No.3 and land in Survey No.229/3+4 measuring 01 acre 07 guntas belonging to Siddappa-Defendant No.1 were acquired by notification dated 25.07.2003 and 04.07.2002 for the Upper Krishna Project. In the preliminary and final notifications, they are shown as owners of the land sought to be acquired. That Land Acquisition Officer had passed award determining the compensation. Not being happy with the same, they had 9 preferred reference under Section 18 of the Land Acquisition Act before the Civil Judge at Vijayapura in L.A.C.No.85/2013 and 86/2013. The Reference Court by Judgment and Award dated 22.12.2018 enhanced the compensation. Accordingly, Execution Petition in E.P.No.186/2019 and EP.No.187/2019 was filed. At that juncture, plaintiff filed a suit in OS..No.87/2020 seeking declaration and permanent injunction with a prayer to declare that he is entitled to receive 1/7th share of the compensation amount awarded in the aforesaid LAC cases and had also sought for an interim order of injunction. The Civil Court in the said ayur ub O.S.No.87/2020 had passed in interim order not to disburse 1/7th share of the compensation in the said L.A.C. cases and that taking advantage of the same, the plaintiff was insisting for the payment. That the Defendants were left with no option except to challenge the Judgment and Decree impugned. That after passing of the Judgment and Decree in O.S.No.291/2003 and R.A.No.40/2014, no final decree 10 proceedings is filed by the plaintiff. Hence, if delay in filing the appeal is condoned, no prejudice would be caused to the other side.
7. Thereafter, the appellants have filed an additional affidavit dated 13.08.2021 along with 10 documents as Annexures-A to K. In that at Para 4, it is contended that after disposing of the appeal in R.A.No.40/2014 on 12.02.2016, the appellants had taken instruction from their advocate for challenging the said Judgment and Decree passed in suit as well as regular appeal and accordingly, entire papers were collected from the Trial Court advocate in the month of March 2016. During that period, one of their relatives Sri.Basappa Yaranalu and Sri.Ramappa- respondent/plaintiff came to the house of the appellant No.1 and informed that in the above suit, he is not willing to claim 1/7 th in suit properties which is allotted to hi share in terms of Judgment and Decree in the above original suit and will also not claim any compensation amount of the land acquired belonging 11 to the appellants/defendants and further also stated that he is not ready to give 1/7th share in his lands which he got through the said partition either to the appellants/defendants as well as to his sisters. That believing said words of the relative as well as respondents/plaintiffs, the appellants did not challenge the impugned Judgment and Decree passed in O.S.No.291/2003 and R.A.No.40/2014 and accordingly, concentrated on proceedings in L.A.C.Nos.85/2013 and 86/2013. Annexure-A to the affidavit is the application filed by appellants herein under Section 18 of the Land Acquisition Act. Annexure-B is the Judgment and Award dated 22.12.2018 passed in .L.A.C.No.85/2013 and 86/2013.
8. At Para 5 of the additional affidavit, it is stated that the respondent/plaintiff with ill-intention changed his mind and filed suit on 22.06.2020 in O.S.No.87/2020 seeking 1/7th share in the compensation amount and also sought for decree for partition of compensation amount. 12 Interim order was passed in the said suit on 01.07.2020 not to disburse 1/7th share. Annexure-C is the plaint in O.S.No.87/2020 and Annexure-D is the interim order dated 01.07.2020.
9. At Para No.6 of the additional evidence, it is contended that respondent/plaintiff filed an application under Order I Rule 10 of CPC seeking to implead in the disposed of reference case in L.A.C.No.85/2013 and 86/2013 and also filed an application under Section 151 of CPC for payment of compensation of 1/7th share as per the decree in O.S.No.291/2003. Thereafter, filed a memo seeking withdrawal of suit in O.S.No.87/2020 which was permitted by the Court on 09.10.2020. The application seeking impleadment in the L.A.C case was allowed by order dated 05.08.2020. The said order was challenged by the appellant in Writ Petition Nos.226890/2020 and 226891/2020 before this Court which was dismissed by this Court on 22.01.2021 with an observation that rights of 13 the parties would be subject to result of the pending regular second appeal. Copies of application seeking payment of compensation and the orders passed on the said applications and the orders passed in the writ petitions are produced at Annexures-E, F, G, H, J and K.
10. At Para 7 of the additional affidavit, it is contended that respondent/plaintiff after Judgment and Decree dated 12.02.2016 in R.A.No.40/2014 has not filed the final decree proceedings and he has given up his preliminary decree. He has kept quite for more than four years and never raised issue even in the proceedings either before Land Acquisition Officer when the appellants withdrew the award amount and even before the II Additional Senior Civil Judge at Vijayapura in L.A.C.Nos.85/2013 and 86/2013 during its pendency. That the respondent/plaintiff opened his eyes only when the final Judgment and Award is passed in said LAC cases 14 enhancing the compensation by filing a suit in O.S.No.87/2022.
11. At Para 8, it is contended that the appellants had come under the say of respondent/plaintiff and under his false promise of not claiming 1/7th share in the compensation in terms of impugned Judgment and Decree. Under the circumstances, appellants could not file the above appeal within time. Hence, there was a delay in filing the appeal.
12. Respondent filed statement of objections to the said application contending inter alia that the appellants herein by suppressing the Judgment and Decree obtained by the respondent herein in O.S.No.291/2003 dated 18.03.2014 confirmed in R.A.No.40/2014 dated 12.06.2016 obtained orders in LAC No.85/2013 and LAC No.86/2013 and thereafter had filed E.P.No.186/2019 and E.P.No.187/2019 and were about to withdraw the amount of compensation depriving the entitlement of the 15 respondent/plaintiff. This constrained the respondent/plaintiff to file a suit in O.S.No.87/2020 and obtain an interim order. Thereafter, the respondent/plaintiff filed an impleading application to implead himself in the aforesaid LAC cases, which application was allowed on 05.08.2020. Appellants herein aggrieved by the same had filed review petition which was also dismissed on 13.11.2020. Appellant thereafter filed writ petitions as noted above which are also dismissed by order dated 27.01.2021. Against the same, appellants also filed writ appeal NO.200026/2021 and 200027/2021 which were also dismissed on 23.02.2021. The appellant had carried the said order to the Supreme Court in SLP No.7526/2021 which was also dismissed on 05.07.2021.
13. That appellants did not file the regular second appeal after dismissal of their regular appeal in R.A.No.40/2014 until 18.01.2021 when the above writ petitions in W.P.No.226890-91/2020 were posted for 16 hearing. The actual delay in filing the appeal is more than 1800 days. The appellants are claiming benefit of exclusion of Covid-19 period, which they are not entitled to in the facts and circumstances of the case, thereby calculating the delay at 1411 days which is still inordinate.
14. That the reasons assigned in the additional affidavit regarding respondent/plaintiff going to the house of appellant along with one Basappa Yarnal dismissed is denied as false and an after thought. That the filing of the affidavit is only to fill up the lacunas in the earlier affidavit wherein there is whisper of any reasons fond in additional affidavit.
15. That there is no sufficient cause shown to condone the delay. Hence, sought for rejection of the application for condonation of delay.
16. Sri Naganand, learned senior counsel appearing for Sri Ravindra Reddy, learned counsel for the 17 appellants reiterating the contents of the affidavit and the additional affidavit submitted that the appellants were prevented from filing the appeal solely on account of representation made by the respondent/plaintiff with regard to he not intending to seek enforcement of Judgment and Decree obtained by him in O.S.No.19/2003.
17. Referring to the plaint in O.S.No.301/2004 a suit filed by Basappa the father of the appellants and the respondents for the relief of perpetual injunction in respect of the suit properties and also referring to the written statement of the respondent/plaintiff herein, who was arrayed as defendant No.2 in the said suit, learned senior counsel submitted that in the written statement filed by the respondent/plaintiff herein, he has categorically admitted that there was a partition of the suit properties amongst the family members and that their father, plaintiff in the said suit had effected the partition assuring the respondent/plaintiff herein that he will give land in R.S.No.229/1, 229/2, 229/3 and 229/4 and that 18 respondent/plaintiff herein had believed and trusted the words of his father and all of them had signed the deed, and the respondent/plaintiff being blind was unable to know the contents and affixed his signature on the paper produced by them. Thus, learned senior counsel submits that the respondent/plaintiff was aware of the earlier partition and despite the same, he choose to file present suit by falsely contending that there has been no family partition at any time earlier. Thus, he submits the averments made in paragraph Nos.3 and 5 of the present plaint are contrary to the own averments and pleading made by the respondent/plaintiff in his written statement earlier filed in O.S.No.301/2004 which the Courts below have failed to appreciate thereby giving raise to substantial question of law. He submits in view of this position delay in filing the appeal needs to be condoned to do substantive justice to the parties. He also relies upon the judgment of Apex Court in the case of G.Ramegowda, Major Etc., vs. The Special Land Acquisition Officer - AIR 1988 SC 897, 19 Maniben Devaraj Shah vs. Municipal Corporation Brihan - (2012) 5 SCC 157, Sesh Nath Singh vs. Baidyabati Sheoraphuli Co-Operative Bank Limited - (2021) 7 SCC 313, Sridevi Datla vs. Union of India - (2021) 5 SCC 321, The State of Karnataka by Revenue Secretary vs. H.B.Munivenkatappa - ILR 2007 KAR 1893 on the grounds of limitation.
18. On the other hand, Sri Narendar M. Reddy, learned counsel appearing for the respondent/plaintiff submitted that no sufficient cause is furnished by the appellants for condoning the delay. He further submits that the conduct of the appellants even as admitted by them would indicate that the appellants are not diligent in the matter of prosecution their case. The decree having attained finality and vested right having been created in favour of the respondent/plaintiff, the same cannot be taken away lightly. He relies upon the judgment of the Apex Court in the case of Majji Sannemma @ Sanyasirao vs. Reddy Sridevi and Others passed in Civil Appeal 20 No.7696/2021 dated 16.12.2021, Lingeswaran Vs. Thirunagalingam - AIR Online 2022 SC 331, State of Karnataka and Another vs. S.K.Parthasarathy Raju and Another - AIR Online 2021 KAR 331, Trimbak vs. Karnataka State Board of Wakf and Others passed in RSA No.200227/2019, H.M.Renukaiah vs. Pacnchaksharaiah - AIR Online 2021 KAR 1067 and Shanmukappa Malshetty vs. Ummakk & Others - 202(3) AKR 53.
19. Heard learned counsel for the parties and perused the records.
20. The point that arises for consideration in this appeal is:
"Whether the appellants have shown sufficient cause warranting condonation of delay of 1411 days in filing the appeal?"
21. There is no dispute of the fact that the decree in O.S.No.291/2003 was passed on 18.03.2014 declaring that the plaintiff is entitled for 1/7th share in the suit 21 properties and that he was entitled for partition and separate possession by meets and bounds. There is also no dispute that the appellants herein carried the said Judgment and Decree before the First Appellate Court by filing R.A.No.40/2014 which by its Judgment and Decree dated 12.02.2016 dismissed the appeal confirming the Judgment and Decree passed by the Trial Court.
22. The averments made in the affidavit dated 22.01.2021 as already noted hereinabove do not whisper anything about the cause for delay except stating that the respondent/plaintiff had filed a suit in O.S.No.87/2020 seeking declaration and permanent injunction and had also obtained an interim order restraining disbursement of 1/7 th share of compensation awarded in LAC Nos.85/2016 and 86/2013 and that taking advantage of the said order, respondent/plaintiff was insisting for payment, without filing final decree proceedings after the passing of the 22 Judgment and Decree in O.S.No.291/2003 and R.A.No.40/2014.
23. Thereafter, the appellants filed additional affidavit in which at paragraph No.4 it is deposed that during the month of March, 2016 one of their relatives Sri Basappa Yarnal and Sri Ramappa - respondent/plaintiff had come to the house of the appellant No.1 and informed that, in the above suit he is not willing to claim 1/7 th share in the suit properties which is allotted to the share of the plaintiff in terms of Judgment and Decree and will also not claim any compensation amount of the land acquired belonging to appellants/defendants. That believing the said words of the relatives as well as respondent/plaintiff, appellants did not challenge the impugned Judgment and Decree passed by the Trial Court and the First Appellate Court. Along with the said additional affidavit, affidavit of one Basappa Yarnal is also filed repeating the aforesaid version.
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24. Except the above, there is no other reason or cause shown by the appellants in not preferring the appeal against the Judgment and Decree passed by the Trial Court and the First Appellate Court.
25. On the other hand, the appellants even as seen from the further contents of additional affidavit at paragraph Nos.4, 5, 6 and 7, they have been prosecuting their claim for compensation by filing LAC No.85/2013 and LAC No.86/2013 and had obtained enhancement of compensation and have thereafter initiated execution proceedings. The respondent/plaintiff on learning about the same has admittedly filed O.S.No.87/2020 and obtained interim order of stay restraining disbursement of compensation awarded in respect of the properties subject matter of the Judgment and Decree passed by the Trial Court and the First Appellate Court in O.S.No291/2003 and R.A.No.40/2014. That apart, the respondent/plaintiff has also filed impleading application in the LAC proceedings, which were allowed and the matter had been carried up to 24 Supreme Court by the appellants, which appeal was dismissed confirming the order of impleading the respondent in the LAC proceedings. It is in these background and facts and circumstances of the case, it has to be seen if the reasons assigned by the appellants would constitute 'sufficient cause' for condoning the delay.
26. In the judgment relied upon by the learned senior counsel appearing for the appellants in the case of G.Ramegowda (Supra), the Apex Court at paragraph No. 7 of its judgment referring to its earlier judgment has held as under:
"7. The contours of the area of discretion of the Courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See:
Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd., [1962] 2 SCR 762; Shakuntala Devi Jain v.Kuntal Kumari, [1969] 1 SCR 1006; Concord of India Insurance Co. Ltd. v. Nirmala Devi and ors., [1979] 3 SCR 694; Lala Mata Din v. A. Narayanan, [1970] 2 SCR 90 and Collector, Land Acquisition v. Katiji, [1987] 2 SCC 107 etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or 25 gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In Katiji's case, (supra), this Court said:
"When substantial justice and technical considerations are A 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."
"It must be 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."
27. The said proposition of law have been followed in the subsequent judgments in the case of Maniben Devaraj Shah (Supra), wherein at paragraph No.15, the Court has held as under:
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"15. The expression "sufficient cause"
used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay."
28. Further, in the case of Sesh Nath Singh (Supra), the Apex Court at paragraph Nos.59, 60 and 61 has held as under:
"59. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute 'sufficient cause' or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.
60. It is true that a valuable right may accrue to the other party by the law of 27 limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties.
61. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application."
29. Thus, referring to the principles laid down in the aforesaid judgments by the Apex Court, learned senior counsel submits that in view of the fact that the respondent/plaintiff had in earlier proceedings in 28 O.S.No.301/2004 in his written statement had admitted about of the partition having taken place in the first week of May, 1999 and contrary to the said admission, has in paragraph No.3 of the plaint of the present suit of in O.S.No.291/2003 has pleaded that there was no partition and plaintiff and defendants are in joint possession of the property till this date, would amount to abuse of process of law thereby defeating the cause of substantial justice.
30. Learned senior counsel further submits that the appellants by filing the additional affidavit have substantiated the sufficient cause and thus have made out a case for consideration for condonation of delay.
31. It is no doubt that the Court have to adopt liberal approach while considering the cases of condonation of delay and expression 'sufficient cause' found in Section 5 of the Limitation Act must receive a liberal construction. But, even as seen in the aforesaid judgments 'each case will have to be considered on the particularities of its own 29 special facts'. The Apex Court in the case of Majji Sannemma (Supra) involving condonation of delay of 1011 days in filing the second appeal, while referring to its earlier judgment passed in Ramlal Motilal and Chotelal vs. Reva Court Fees Limited - (1962) 2 SCR 762 at paragraph No.7.1 to 7.5 has held as under:
"7.1. In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:-
In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree - holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree - holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree
- holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and 30 discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890)J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.
7.2. In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
7.3. In the case of Pundlik Jalam Patil (supra), it is observed as under:-
"The laws of limitation are
founded on public policy. Statutes of
limitation are sometimes described as
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"statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
7.4. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides 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. It is further observed that in case a party has acted with negligence, lack of bonafides or there is inaction then there cannot be any 32 justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
7.5. In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".
32. Viewed from the aforesaid principles of law and the fact situation of the present case which is extracted hereinabove, this Court is of the considered view that the appellants have not provided sufficient cause to condone the delay. The conduct of the appellants clearly establishes lack of bonafides on their part. The appellants have been negligent in not filing the appeal. The parties have been litigating for long time. Considering that there 33 have been litigations between them, it cannot be countenanced that the appellants were influenced by respondent/plaintiff allegedly informing them of he was not willing to claim his share. The additional affidavit merely refers to the word information. There is also no whisper about respondent/plaintiff giving any assurance, promise or undertaking. It is also not forthcoming from the additional affidavit filed by the appellants that there was any document entered into between the parties in pursuant to the 'information given by the respondent/plaintiff'. If at all any such incident had taken place, nothing prevented the appellants from placing the same at the first instance in their first affidavit. Clearly the additional affidavit is an after thought. The appellants who have been prosecuting LAC matters, execution petition, objecting and defending the suit filed by the respondent/plaintiff in O.S.No87/2020 and thereafter opposing impleading application filed by respondent/plaintiff and carrying the same up to the 34 Supreme Court cannot be expected to have been taken over or influenced by the information of the respondent/plaintiff.
33. For the foregoing reasons, this court is of the considered view that the appellants have not made out any case and there is no sufficient cause shown by them warranting condonation of delay of 1411 days in filing the appeal. Consequently, following:
ORDER Application in I.A.1/2021 is rejected.
Consequently, appeal is dismissed and pending applications are also rejected.
Sd/-
JUDGE Bnv/Srt