Karnataka High Court
Basayya @ Basavaraj vs Gurabasappa on 16 July, 2024
-1-
NC: 2024:KHC-K:4967
RSA No. 200219 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200219 OF 2022 (POSS)
BETWEEN:
BASAYYA @ BASAVARAJ
S/O SIDRAMAYYA MATH @ HIREMATH,
AGE: 46 YEARS,
OCC:AGRICULTURE AND PVT. WORK,
R/O: BUDIHAL P.N., TQ. MUDDEBIHAL,
DIST. VIJAYAPURA-586213.
...APPELLANT
(BY SRI B. K. HIREMATH, ADVOCATE)
AND:
Digitally signed
by SWETA GURABASAPPA S/O HANAMAPPA BHOVI,
KULKARNI
Location: HIGH
AGE: 72 YEARS, OCC: RETIRED/PENSIONER,
COURT OF R/O: BUDIHAL P.N., TQ. MUDDEBIHAL,
KARNATAKA
DIST. VIJAYAPURA.
NOW RESIDING AT
SANGAMESHWAR NAGAR,
MUDDEBIHAL, TQ. MUDDEBIHAL,
DIST.VIJAYAPURA-586212.
...RESPONDENT
(BY SRI BASAVARAJ KAREDDY, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL AND CALL FOR THE
-2-
NC: 2024:KHC-K:4967
RSA No. 200219 of 2022
RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT
MUDDEBIHAL IN R.A. NO.14/2013 DATED 18.09.2014 AND
ALSO SET ASIDE THE JUDGMENT AND DECREE PASSED BY
CIVIL JUDGE AT MUDDEBIHAL IN O.S. NO.234/2008 DATED
01.04.2013 AND DECREE THE SUIT OF THE APPELLANT/
PLAINTIFF AND DIRECT THE RESPONDENT TO HAND OVER THE
VACANT POSSESSION OF ILLEGALLY ENCROACHED 18 GUNTAS
TOWARDS WESTERN SIDE IN LAND SY. NO.31/2B OF BUDIHAL
P.N., TQ. MUDDEBIHAL, DIST. VIJAYAPURA IN FAVOUR OF THE
APPELLANT/PLAINTIFF.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant. The present appeal is preferred with a delay of 1891 days. Accordingly, an application supported by an affidavit of the appellant is filed for condoning the delay in filing the appeal. It is averred in the affidavit at paras-3 and 4 that after dismissal of the suit of the appellant as well as the regular appeal, the appellant made objections before the Tahasildar and Taluka survey office and filed application not to effect phodi Form No.10 and also intimated that the respondent had illegally encroached 18 guntas towards the western side in Sy.No.31/2B of Budihal P.N. Further it is stated that since from the date of the judgment and decree in R.A.No.14/2013, the Tahasildar and Taluka Survey Officer had not prepared Form No.10 in -3- NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 order to effect any phodi and when the Taluka Survey Officer came to the suit land, they have not made any efforts for making phodi and Form No.10. It is stated that the Trial Court Advocate did not inform the appellant to prefer an appeal before this Court and the uncle of the appellant told the appellant to prefer an appeal before this Court, it is only then the appeal is been preferred. The reasons stated at paras-3 and 4 of the affidavit are culled out as under:
"3. That, the deponent after dismissing suit of the appellant as well regular appeal, the appellant made objection before Tahsildar and taluka survey office and filed application not to effect phodi and Form No. 10 and also intimated that the respondent had illegally encroached 18 guntas towards Western side in Sy.No. 31/2B of Budihal P.N. Since from the date of judgement and decree in RA No. 14/2013, the Tahsildar and taluka survey officer not prepared Form No. 10 and not effected any phodi and even also when the taluka survey officer came to suit land, they have not made any hectic efforts for making phodi and Form No. 10.
4. It is further submitted that the appellant/plaintiff had given an application to taluka survey officer requesting to effect phodi and prepare Form No. 10 and he submitted that there are objections and whatever is to be prepared Form No. 10 and making phodi, to be made only to the extent of 5 acres in Sy.No. 31/2B but not 5 acres 18 -4- NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 guntas and said application was given on 7-9-2021 and same was received by the taluka survey officer. Since from judgement and decree passed in RA No. 14/2013, the respondent as well as taluka survey officer not tried anything but now the respondent is pressuring the taluka survey officer in colluding with them and manhandling and forcing them, the taluka survey officer is going to prepare Form No. 10. Since from passing the judgement and decree in RA No. 14/2013, the respondent has kept silent for effecting Form No. 10 and phodi. It is came to knowledge in the month of September 2021 that the taluka survey officer is going to effect Form No. 10 and making phodi and the appellant filed application and till today they have not said anything, but the respondent is a government servant and at any time may try to effect Form No. 10 and phodi. Even the trial court advocate did not inform the appellant to prefer an appeal before this Hon'ble Court and the uncle of the appellant told the appellant to prefer an appeal before this Hon'ble Court. Thus, there is a delay in this process which is not intentional one but due to above said reasons."
2. When the Court is called upon to condone the delay in filing the appeal, the reasons stated in the affidavit should be "sufficient cause" as to the conscience of the Court. The law of limitation is founded on a public policy. It is enshrined in legal maxim "Interest Reipublicae Ut Sit Finis Litium" i.e., it is for the general welfare that a period of limitation be put to litigation. -5-
NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 The approach is to put an end to every legal remedy and for a fixed period of life for every litigation as it is virtually to be kept in litigation or dispute pending indefinitely. Even public policy requires that there should be an end of litigation otherwise it would be a dichotomy if the litigation is made immortal vis-a- vis the litigating parties i.e., the human beings, who are mortals. Section 3 (1) of the Limitation Act, 1963 reads as under:
"3. Bar of limitation. - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
3. Section 3 of the Limitation Act in no uncertain terms lays down that no suit, appeal or application instituted, preferred or made after a period prescribed shall be entertained rather dismissed even though limitation has been set up as a defence subject to the exceptions contained in Sections 4 to 24 (inclusive) of the Limitation Act.
4. In the light of the above provisions, the appeal which is preferred after expiry z`of the limitation is liable to be dismissed, the use of word "sufficient" in the aforesaid -6- NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 provision connotes that the dismissal is mandatory subject to explanation. In other words, it is an obligation upon the Court to dismiss an appeal which is presented beyond limitation and also it is a general rule of limitation. Generally, the courts have adopted a very liberal approach in construing the phrase 'sufficient cause' used in Section 5 of the Limitation Act in order to condone the delay and to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice.
5. The Apex Court in Basawaraj and Anr. vs. Special Land Acquisition Officer1 (Basawaraj) has observed that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression 'sufficient cause' as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly effect rights of the parties but it has to be applied with all its rigour as prescribed under the statue as the courts have no choice but to 1 (2013) 14 SCC 81 -7- NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 apply the law as it stands and they have no power to condone the delay on equitable grounds. The Apex Court in Basawaraj's case stated supra at para-15 has held as under:
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
6. The Apex Court in a recent decision in the case of Pathapati Subba Reddy (Died) by L.Rs. & Ors. v. The -8- NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 Special Deputy Collector (LA)2 has given an elaborate consideration to the provisions of law and laid down the guidelines in respect of law of limitation and at para-26 has held as under:
"26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is 2 2024 SCC Online SC 513 -9- NC: 2024:KHC-K:4967 RSA No. 200219 of 2022 inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
7. In light of the legal position laid down by the Apex Court, this Court needs to test whether the inordinate delay in filing the appeal could be condoned or not. The reasons stated in the affidavit are not bona fide reasons but an act of negligence on part of the appellant. The delay of 1891 days is unexplained by the appellant and this Court is unable to exercise the discretionary power to condone the delay in filing the appeal as no due diligence on part of the appellant is apparently appearing from the affidavit filed by the appellant. The delay is not a few days but an inordinate delay of 1891 days i.e., five years two months and 6 days.
- 10 -
NC: 2024:KHC-K:4967 RSA No. 200219 of 2022
8. Under the said circumstances, there is no justification for condoning the delay in preferring the appeal. In the said circumstances, the appeal is dismissed on the ground of delay and laches. Accordingly, I.A.No.1/2021 is dismissed and consequently, the appeal is dismissed on the ground of delay.
Sd/-
JUDGE SWK List No.: 1 Sl No.: 34 CT: VD