Karnataka High Court
Vasant Laxman Akalwadi vs Subbaraj Dattaka Father Rajgopal on 26 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1477
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
R.S.A.NO.100166 OF 2019 [DEC. AND INJ.]
BETWEEN:
VASANT LAXMAN AKALWADI,
AGE : 52 YEARS, OCC : BUSINESS,
R/O.RAMNAGAR, DHARWAD-580001.
....APPELLANT
(BY SMT.SUMANGALA CHAKALABBI, ADVOCATE)
AND :
1. SUBBARAJ DATTAKA FATHER RAJGOPAL
AKALAWADI, AGE : 56 YEARS,
OCC: BUSINESS,
R/O.MANGALWAR PETH,
DHARWAD-580001.
2. SMT.SHAMALA W/O.ASHOK AKALWADI,
NO.6, FLAT NO.5, PAGADALA CASTK,
MIDDLE SCHOOL, V.V.PURAM,
BANGALORE-560018.
3. HEMA W/O.VENKTESH AKALWADI,
NO.6, FLAT NO.5, PAGADAL CASTK,
MIDDLE SCHOOL, V.V.PURAM,
BANGALORE-560018.
2
RSA.No.100166/19
4. SUMA W/O.OMKAR AINAPUR,
JENESLO BUILDING, FLAT NO.3,
1ST FLOOR, BEPQUEGAL,
GOA-403706.
5. ASHWIN S/O.ASHOK AKALWADI,
NO.6, FLAT NO.5, PAGADALA CASTK,
MIDDLE SCHOOL, V.V.PURAM,
BANGALORE-560018.
6. ANAND S/O.ASHOK AKALAWADI,
NO.6, FLAT NO.5, PAGADALA CASTK,
MIDDLE SCHOOL, V.V.PURAM,
BANGALORE-560018.
7. SATISH LAXMAN AKALAWADI,
OCC : BUSINESS, AGE : 54 YEARS,
NEAR KAMALANI'S HOUSE,
KURPALIS COMPOUND,
P.B.ROAD, DHARWAD-580001.
8. NEELKANTA ISHWAR AKALAWADI,
AGE : 40 YEARS, OCC : BUSINESS,
R/O.RAMNAGAR, DHARWAD-580001.
9. KIRAN ISHWAR AKALAWADI,
AGE : 38 YEARS, OCC : BUSINESS,
R/O.RAMANAGAR, DHARWAD-580001.
10. SMT.UMA KOM ISHWAR AKALAWADI,
AGE : 59 YEARS, OCC : HOUSEHOLD WORK,
R/O.RAMNAGAR, DHARWAD-580001.
... RESPONDENTS
(BY SRI.ARAVIND D.KULKARNI, ADVOCATE FOR
-RESPONDENT NO.1)
(NOTICE TO RESPONDENT NOS.2 TO 10 - DISPENSED)
3
RSA.No.100166/19
THIS APPEAL IS FILED UNDER SECTION 100 OF
THE CODE OF CIVIL PROCEDURE, 1908 AND PRAYED
TO SET ASIDE THE ORDER PASSED IN R.A.NO.272 OF
2015 BY THE COURT OF II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD DATED 23.08.2015 AND
THE JUDGMENT AND DECREE IN O.S.NO.192 OF 1996
DATED 09.10.2002 PASSED BY THE II ADDITIONAL
CIVIL JUDGE SENIOR DIVISION, DHARWAD AND PASS
APPROPRIATE ORDERS IN FAVOUR OF APPELLANT IN
THE INTEREST OF JUSTICE AND EQUITY.
RESERVED FOR JUDGMENT ON: 18.07.2019.
JUDGMENT PRONOUNCED ON : 26.07.2019.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON I.A.NO.1 OF 2019,
COMING ON FOR PRONOUNCEMENT OF ORDER/
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING :
JUDGMENT
This application is filed by the appellant under Section 5 of the Limitation Act seeking to condone the delay of 823 days in filing the appeal. The appellant- Vasant Laxman Akalwadi has sworn to an affidavit annexed to the application that this appeal is filed against impugned order of the lower appellate Court in R.A.No.272 of 2015, wherein his appeal was dismissed 4 RSA.No.100166/19 as barred by principles of res judiceta and not maintainable.
2. After passing the impugned order dated 23.08.2016, he applied for certified copy on 16.09.2016 and the same was supplied to him on 29.09.2016. At that time of FDP No.4 of 2007 in respect of the same subject matter was pending. Hence, he was advised that whatever the relief he needs in this appeal can be availed, if he succeeds in FDP.No.4 of 2007. The said FDP was decided against him and against that he preferred R.A.No.256 of 2016 before the Principal District Judge, Dharwad and the said appeal was dismissed on 03.04.2018. Thereafter, once again he was advised to prefer a civil revision petition before this Court in order to avoid legal complications. Therefore, he filed C.R.P.No.100050 of 2018 which was dismissed on 09.01.2019 as not maintainable and liberty has been granted to avail appropriate remedy against the 5 RSA.No.100166/19 impugned order. Hence, the delay has occurred in filing this appeal. Delay is due to unavoidable circumstances and no fault on his part. If the delay is not condoned he will be put to great hardship and irreparable loss and his legal right by first appeal has been denied by the impugned order.
3. The respondent No.1 has filed the statement of objections on the application stating as follows :
The appellant has challenged the order dated 23.08.2016 passed by the II Additional District and Sessions Judge, Dharwad in R.A.No.272 of 2015 wherein the appeal filed by the appellant herein was dismissed. The impugned order was passed on 23.08.2016 and the present appeal is filed on 22.02.2019 and there is delay of 823 days in filing the appeal. There is no any kind of proper explanation for condonation of delay. The appellant has stated that FDP.No.4 of 2007 was pending in respect of the same 6 RSA.No.100166/19 subject matter and he was advised that whatever the relief he needs in this appeal can be availed, if he succeeds in FDP.No.4 of 2007. After the dismissal of the said FDP, appellant herein filed R.A.No.256 of 2016 which was dismissed on 03.04.2018. Thereafter, the appellant filed CRP.No.100050 of 2018 which was also dismissed. The appellant has obtained certified copy of the impugned order immediately after the order was passed. Therefore, the pendency of the FDP can not preclude the appellant from filing the appeal and the same cannot be a ground to condone the delay and latches. FDP is of the year 2007. The appellant had challenged the decree passed in FDP and the said appeal was also dismissed and thereafter regular second appeal was filed in respect of FDP and the same was also dismissed by this Court. Therefore, question of challenging the preliminary decree at this stage does not arise. The appellant kept quit from 23.08.2016 till 27.06.2018. The civil revision petition was also filed 7 RSA.No.100166/19 nearly after three years from the disposal of the regular appeal. The appellant has to show sufficient cause for condonation of delay, otherwise same cannot be condoned. It is well settled principle of law that a litigant, whether it is an individual or a Government body or any legal entity, it owes a duty to be vigilant of its rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against it or initiated at its instance. Respondent No.1 herein had filed suit in the year 1992 and out of the said suit appellant herein has consistently preferred one after the other litigation and has already preferred four R.S.A's before this Court and all of them have been answered against him. The conduct of the appellant is very much clear that his intention is only to keep the litigation going on. The contentions on merits have already been considered by this Court and have been negatived in the previous four R.S.A's. The present appeal is false, frivolous and vexatious and the same is 8 RSA.No.100166/19 untenable in the eyes of law or on the facts of the case.
The appeal is not maintainable and liable to be dismissed by awarding exemplary costs. Application for condonation of delay is devoid of merits and is liable to be rejected.
4. Heard the learned counsels for the appellant and respondent No.1.
5. A short question which arises for consideration in this application is as to whether the appellant has made out sufficient cause to condone the delay of 823 days in filing the appeal.
6. It is not disputed by the appellant herein that number of litigations have been initiated against the Judgment and Decree passed in O.S.No.192 of 1996.
7. The learned counsel for the respondent No.1 has filed three memos showing the proceedings initiated by the present appellant against the preliminary decree 9 RSA.No.100166/19 passed in the suit and also against final decree passed in the matter and also against the order passed in Execution Case No.47 of 2017. It is not disputed by the present appellant that previously he had filed four R.S.A's in the same matter and all the four R.S.A's were decided against him. It is also necessary to observe that the impugned order was passed on 23.08.2016 in R.A. No.272 of 2015 and the appellant obtained the certified copy of the impugned order on 29.09.2016. However, he kept quite on the advice that he would get the same relief in FDP.No.4 of 2007. Therefore, though the impugned judgment was in respect of preliminary decree, he did not choose to file appeal before this Court in time.
8. The appellant has further stated that FDP was decided against him and against that he preferred R.A.No.256 of 2016 before the Principal District and Sessions Judge, Dharwad, which was also dismissed on 10 RSA.No.100166/19 03.04.2018. Even at this stage, the appellant did not choose to file the present appeal against the impugned order passed against the preliminary decree. But the appellant filed Civil Revision Petition No.100050 of 2018 against the dismissal of R.A.No.272 of 2015 and the said CRP was dismissed as not maintainable. However, with liberty to file appropriate remedy against the impugned order.
9. The learned counsel for the appellant has relied on the following Judgments :
(i) Collector, Land Acquisition, Anantnag and Another v. Msr.Katiji and Others reported in (1987) 2 SCC 107.
(ii) K.Subbarayudu & Ors. v. Special Deputy Collector (Land Acquisition) reported in 2017 AIAR (Civil) 821.
(iii) The State of West Bengal v. The Administrator, Howrah Municipality and Others reported in (1972) 1 SCC 366.11
RSA.No.100166/19
(iv) Civil Appeal No.4507 of 2019 in the case of Robin Thapa v. Rohit Dora, decided on 08.07.2019 by the Hon'ble Supreme Court.
(v) Civil Appeal No.5557-5559 of 2019 in the case of Shri Badru (since deceased) Through L.R.Hari Ram Etc. v. NTPC Limited (formerly National Thermal Power Corporation Limited) & Ors. decided on 16.07.2019 by the Hon'ble Supreme Court.
the Hon'ble Supreme Court in the above stated cases has held that the Courts should adopt a liberal and justice oriented approach while considering the sufficient cause and that the provisions contemplates that the Court has to go into position of the person concerned and find out if delay can be said to have resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient. It is also further held that if a party acted in a particular manner on a wrong advice given by his legal advisor, he cannot be 12 RSA.No.100166/19 guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act.
10. Per Contra, the learned counsel for respondent No.1 has relied on the Judgment in the case of Balwant Singh (Dead) v. Jagdish Singh and Others reported in (2010) 8 SCC 685 the Hon'ble Supreme Court in paragraph No.34 has held as follows :
"34. Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect "sufficient cause" as understood in law."
11. Further in paragraph Nos.37(ii) and 37(v) the Hon'ble Supreme Court has held as follows :
"37(ii) In considering the reasons for condonation of delay, the courts are more liberal 13 RSA.No.100166/19 with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
37(v) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."
Therefore, the Court will have to keep in view that a valuable right accrues to the opposite party because of 14 RSA.No.100166/19 the delay on the part of the applicant. It is also held that want of diligence or inaction can be attributed to an applicant only when something required is not done.
12. In the present case, the list of the cases initiated by the present appellant against the preliminary decree, final decree and execution proceedings goes to show that his intention is to some how delay the decree holders from enjoying the fruits of the decree. This has been observed by this Court in the Judgment in R.S.A.No.100260 of 2019 (PAR) which was also filed by the present appellant in the capacity as partner of Ramashraya Book Depot. The said Regular Second Appeal was preferred against the order passed in R.A.No.124 of 2018 confirming the order dated 21.08.2018 passed in E.P.No.47 of 2017 on the file of II Additional Senior Civil Judge, Dharwad. In that case, this Court has observed that the appellant is trying to delay and protract the execution of the FDP by filing 15 RSA.No.100166/19 such application. Same has to be discouraged as held by the Hon'ble Supreme Court in the case of Bool Chand v. Rabia reported in (2016) 14 SCC 270. Therefore, absolutely there is no cause much less the sufficient cause being made out by the appellant for condonation of delay of 823 days in filing the present appeal.
13. It is not the case of the appellant that he has filed the present appeal against the Judgment and Decree passed against the Final Decree. On the other hand, the present appeal is filed against the preliminary decree after he having challenged the decree passed in FDP in R.A.No.256 of 2016 and thereafter CRP No. 100050 of 2018 and further Regular Second Appeal against the final decree. Under these circumstances, this Court holds that absolutely there are no bonafides on the part of the appellant and the appellant has not at all made out any sufficient cause to condone the delay of 823 days in filing the present appeal. Accordingly, the 16 RSA.No.100166/19 point for consideration is answered in the negative. In the result, this Court proceed to pass the following :
ORDER I.A.No.1 of 2019 filed under Section 5 of the Limitation Act is hereby dismissed with cost of Rs.10,000/-.
Consequently, regular second appeal stands dismissed.
In view of the dismissal of the appeal, I.A.No.2 of 2019 filed for stay does not survive for consideration.
Sd/-
JUDGE Ckk