Karnataka High Court
Galewwa W/O Durugappa Madar Alias ... vs Tirakappa S/O Neelappa Madar Alias ... on 25 November, 2024
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NC: 2024:KHC-D:17256
RSA No. 101552 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 101552 OF 2022 (PAR/POS)
BETWEEN:
1. GALEWWA W/O. DURUGAPPA MADAR
@ MYAGERI,
AGE: 79 YEARS, OCC. NIL,
R/O. JOYISARAHARALALLI,
TQ. RANEBENNUR,
DIST. HAVERI-581115.
BASAPPA S/O. DURUGAPPA MADAR @ MYAGERI,
SINCE DIED ON 22-10-2017 BY LRS.,
2. GANGAWWA W/O. BASAPPA MADAR @ MYAGERI,
AGE: 53 YEARS, OCC. HOUSEHOLD,
Digitally
VISHAL
signed by
VISHAL
NINGAPPA
PATTIHAL
R/O. JOYISARAHARALALLI,
NINGAPPA
PATTIHAL Date:
2024.11.28
10:19:52
NOW AT TIRUMALADEVARKOPPA,
+0530
TQ. RANEBENNUR,
DIST. HAVERI-581115.
3. MANJAWWA W/O. KARIYAPPA KADEMANI,
AGE: 36 YEARS, OCC. COOLIE,
R/O. TIRUMALADEVARKOPPA,
TQ. RANEBENNUR, DIST. HAVERI-581115.
4. GUTTEPPA S/O. BASAPPA MADAR @ MYAGERI,
AGE: 34 YEARS, OCC. COOLIE,
R/O. JOYISARAHARALALLI,
NOW AT TIRUMALADEVARKOPPA,
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NC: 2024:KHC-D:17256
RSA No. 101552 of 2022
TQ. RANEBENNUR,
DIST. HAVERI-581115.
5. KOTRESH S/O. BASAPPA MADAR @ MYAGERI
AGE: 32 YEARS, OCC. COOLIE,
R/O. JOYISARAHARALALLI,
NOW AT TIRUMALADEVARKOPPA,
TQ. RANEBENNUR, DIST. HAVERI-581115.
6. GALEWWA W/O. GUDDAPPA MALLADAD,
AGE: 30 YEARS, OCC. COOLIE,
R/O. DEVAGIRI,
TQ. AND DIST. HAVERI-581110.
7. RAMAPPA S/O. DURUGAPPA MADAR @ MYAGERI,
AGE: 50 YEARS, OCC. AGRICULTURE,
R/O. JOYISARAHALALLI,
TQ. RANEBENNUR, DIST. HAVERI-581115.
8. RANGAPPA S/O. DURUGAPPA MADAR
@ MYAGERI,
AGE: 54 YEARS, OCC. AGRICULTURE,
R/O. JOYISARAHARALALLI,
TQ. RANEBENNUR, DIST. HAVERI-581115.
9. SMT. HIRIYEWWA W/O. HANUMAPPA MADAR
@ MYAGERI,
AGE: 39 YEARS, OCC. COOLIE,
R/O. KADARMANDALAGI,
TQ. BYADAGI, DIST. HAVERI-581106.
... APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
TIRAKAPPA S/O. NEELAPPA MADAR @ MYAGERI
SINCE DECEASED BY LRS.,
1. BASAVVA @ BASAMMA W/O. TIRAKAPPA MADAR
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NC: 2024:KHC-D:17256
RSA No. 101552 of 2022
@ MYAGERI,
AGE: 71 YEARS, OCC. HOUSEHOLD,
R/O. JOYISARAHARALAHALLI,
TQ. RANEBENNUR, NOW AT MALLAHALLI,
TQ. SHIKARIPUR, DIST. SHIVAMOGA-577427.
2. NAGAVVA W/O. GUDDAPPA MADAR @ MYAGERI,
AGE: 56 YEARS, OCC. COOLIE,
R/O. BALAMBIDA, TQ. HIREKERUR,
DIST. HAVERI-581111.
3. GUTTEVVA @ KUSUMA W/O. NAGARAJ MADAR
@ MYAGERI,
AGE: 50 YEARS, OCC. COOLIE,
R/O. BHADRAPUR, TQ. RANEBENNUR,
NOW AT MALLAHALLI,
TQ. SHIKARIPUR,
DIST. SHIVAMOGGA-577427.
4. MANJAPPA S/O. TIRAKAPPA MADAR @ MYAGERI,
AGE: 39 YEARS, OCC. AGRICULTURE,
R/O. JOYISARAHARALAHALLI,
TQ. RANEBENNUR,
NOW AT MALLAHALLI, TQ. SHIKARIPUR,
DIST. SHIVAMOGGA-577427.
5. NEELAVVA W/O. SHIVAPPA MADAR,
AGE: 49 YEARS, OCC. COOLIE,
R/O. BALAMBIDA, TQ. HIREKERUR,
DIST. HAVERI-581111.
6. BALAWWA @ BHAGYAMMA
W/O. SHIDLAPPA MUGALANNAVAR,
AGE: 62 YEARS, OCC. COOLIE,
R/O. N.K.ROAD, A.K.COLONY,
7TH CROSS, SANNA HANUMAJJANA MANE,
HARIHAR, TQ. HARIHAR,
DIST. DAVANGERE-577601.
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NC: 2024:KHC-D:17256
RSA No. 101552 of 2022
7. MARIYAMMA W/O. NAGAPPA BISHTANNAVAR,
AGE: 58 YEARS, OCC. COOLIE,
R/O. SARAWAD, TQ. RANEBENNUR,
DIST. DAVANAGERE-577601.
8. NAGAPPA S/O. DURGAPPA BISHTANNAVAR,
AGE: 62 YEARS, OCC. COOLIE,
R/O. JOYISARAHARARAHALLI, TQ. RANEBENNUR,
DIST. HAVERI-581115.
... RESPONDENTS
(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R1 TO R7;
NOTICE TO R8 IS DISPENSED WITH)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,.
AGAINST THE JUDGMENT AND DECREE DATED 01.01.2018
PASSED IN R.A.NO.20/2016 ON THE FILE OF PRINCIPAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, RANEBENNUR AT RANEBENNUR, PARTLY
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 23.01.2016 PASSED IN
O.S. NO.163/2011 ON THE FILE OF THE ADDITIONAL
CIVIL JUDGE AND II ADDITIONAL JUDICIAL MAGISTRATE
FIRST CLASS, RANEBENNUR, DECREEING THE SUIT FILED
FOR SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER ORDERS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:17256
RSA No. 101552 of 2022
ORAL JUDGMENT
The present regular second appeal is accompanied with I.A. No.1/2022 filed seeking to condone the delay of 971 days in filing the appeal.
2. The affidavit of I.A. No.1/2022 is filed by Rangappa S/o. Durugappa-appellant No.8 herein. The reasons Stated in the affidavit at para Nos.4 and 5 are culled out as under:
"4. I submit that the Appellants are uneducated and poor persons due to financial constraints they could not arrange to file the appeal intime. At the same time there was spread of Covid 19 virus and the public activities were stopped. Also the Hon'ble Apex court has issued direction in Suo Motu W.P No. 3/2020 to excude the time 15-03-2020 to 28-02- 2022 to exclude period from computation of the limitation.
5. In this process there is a delay of 971 days in filing the Appeal. The dealy caused is neither deliberate nor intentional. The Respondents all the way have not disputed my claim, hence if the delay is condoned no loss or hardship will be caused to them."
3. The reasons stated by the appellants is that they are uneducated, poor persons and due to financial constraints they could not arrange to file the appeal in -6- NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 time, further, there was Covid-19 Pandemic, and the public activities were stopped in light of the SOP directions, hence, they could not prefer the appeal in time.
4. Objections are filed to the application by the respondents contending that the appellants have not made out sufficient grounds to condone the delay and sought for dismissal of the application.
5. The question that falls for consideration before this Court is that "whether in the facts and circumstances of the reasons indicated above, the appellant has made out sufficient ground to condone the inordinate delay?"
6. The law of limitation finds its routes in the legal maxim "Interest reipublicae ut sit fanis litum" which means that in the interest of the state as whole there should be a limit to litigation and "vigilantibus non dormeientibus jura subveniunt" which means the law will assist only those who are vigilant to their rights and not -7- NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 those who sleep upon it. The law of limitation specifies the statutory time frame within which a person may initiate a legal proceedings or a legal action can be brought. If the suit is filed after the expiry of the time prescribed, it will be barred by limitation, it means that the suit brought before the Court after the expiry of the time within which a legal proceedings to be initiated will be restricted.
7. Section 3 of the Limitation Act, 1963 lays down the general rule that if any suit, appeal and application made after the prescribed period shall be dismissed although limitation has not been setup as a defence, the exceptions are culled out under Section 4 to 24 of the Limitation Act, and this Court is concerned about Section 5 of the Limitation Act, which empowers the Court to admit an appeal even if it is preferred after the prescribed period provided the proposed appellants give "sufficient cause"
for not preferring the appeal within the prescribed period, in other words the Courts have conferred with -8- NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellants are able to establish "sufficient cause" for not filing within time.
8. The said power to condone the delay and admit the appeal preferred after the expiry of the time is discretionary in nature and may not be exercised even if "sufficient cause" is shown based upon post of other factors such as negligence, failure to exercise due diligence, etc., the Apex Court in the case of Collector, Land Acquisition, Anantnag and Other Vs. Katiji and Others1 has held in advocating the liberal approach in condoning the delay for sufficient cause held that ordinarily a litigant does not stand to benefit by lodging an appeal late: it is not necessary to explain every days delay in filing the appeal: and since some time refusal to condone the delay may result in throwing out the meritorious matter, it is necessary in the interest of justice 1 (1987) 2 SCC 107 -9- NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 that cause of substantial justice should be allowed to prevail upon the technical consideration and if the delay is not deliberate, it not be condoned. Notwithstanding the above, howsoever liberal approach is adopted in condoning the delay, existence of "sufficient cause" for not filing the appeal in time is a condition precedent for exercising the discretionary power to condone the delay.
9. The phrases "liberal approach, justice oriented approach" and cause for the advancement of "substantial justice" cannot be employed to defeat the law of limitation so as to allow the stale matters or as a matter of fact dead matters to be revived and reopened by taking aid of Section 5 of the Limitation Act. In the instant case, the delay is of not few days but inordinate delay of 971 days, Section 5 of the Limitation Act, prescribes certain period for filing an appeal, substantial right is already been created in favour of the decree holders herein and this right ought not to be lightly disturbed, the decree holders have already created a decree in their favour by lapse of
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 time. The Apex Court in the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields ltd.,2 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the Court. The Court, despite establishment of "sufficient cause" for various reasons may refuse to condone the delay depending upon the bonafide of the party.
10. The Apex Court in the case of Lanka Venkateswarlu (Dead) By LRs Vs. State of Andhra Pradesh and Others3 has observed that despite an unsatisfactory explanation for the delay of 3703 days, the High Court had allowed application for condonation of delay, the Apex Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. The High Court should have exercised the discretion in a systematic and in informed manner. The 2 AIR 1962 SC 361 3 (2011) 4 SCC 363
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 liberal approach in considering the sufficiency of the cause for delay should not allowed to over ride the substantial law of limitation. The Court further observed that the concepts such as "liberal approach" "justice oriented approach" and "substantial justice" cannot be employed to jettison the substantial law of limitation. The Apex Court in the later judgment of Basawaraj and Anr. vs. Special 4 Land Acquisition Officer (Basawaraj) has observed that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. "Sufficient cause", as occurring in Section 5 of the Limitation Act, cannot be liberally interpreted if negligence, inaction or lack of bonafide is writ large. It has also observed even though limitation may harshly affect the rights of the parties but it has to be applied with all its rigour as prescribed under the statute and the Courts have no choice but to apply the law as it stands and they have no power to condone the delay 4 (2013) 14 SCC 81
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 on equitable grounds and at paragraph No.12 and 15 has held as under:
"12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
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
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 provisions and it tantamounts to showing utter disregard to the legislature."
11. In the recent decision the Apex Court in the case of Pathapati Subba Reddy (Died) by L.Rs. and Ors. v. The Special Deputy Collector (LA)5 has given a consideration to the provisions of law as aforesaid and has held at paragraph No.26 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;5
2024 SCC Online SC 513
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022
(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 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."
12. The Apex Court in another judgment in the case of Ajay Dabra Vs. Pyare Ram and Ors6 has observed that an appeal has to be filed within a stipulated period prescribed under the law belated appeals can only be condoned, when "sufficient reasons" are shown before the Court for the delay and the Courts should not be pedantic in their approach while condoning the delay and the explanation of each day's delay should not be taken 6 2023 live law (SC) 69
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 literally but the fact remains there must be a reasonable explanation for the delay and at paragraph No.5 has held as under:
"5. What we have here is a pure civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. In the present case, this delay has not been explained to the satisfaction of the court. The only reason assigned by the appellant for the delay of 254 days in filing the First Appeal was that he was not having sufficient funds to pay the court fee! This was not found to be a sufficient reason for the condonation of delay as the appellant was an affluent businessman and a hotelier. In any case, even it is presumed for the sake of argument that the appellant was short of funds, at the relevant point of time and was not able to pay court fee, nothing barred him from filing the appeal as there is provision under the law for filing a defective appeal, i.e., an appeal which is deficient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Section 149 of Civil Procedure Code, 1908 which reads as under :-
"Section 149: Power to make up deficiency of Court Fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee, and upon such payment the document, in respect of which
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
It also needs to be emphasized that this Court as well as various High Courts, have held that Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the incorporation of Section 149 in CPC would explain this aspect."
13. The appellants have not made out any ground to condone the delay of 971 days in preferring the appeal. Despite there being a delay of 971 days, this Court has considered the matter on merits, to see that no injustice is done to the party. Perusal of the judgment and decree of the Courts below indicate that the Courts below arrived at a conclusion that the plaintiff is entitled for share in the suit property. The defendants before the Court contested the suit and the trial court decreed the suit holding that the plaintiff is entitled for notional partition. In the appeal preferred by defendants, the First Appellate court arrived at a conclusion that the plaintiff is entitled for equal share in the suit 'B' schedule properties and partly decreed the
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NC: 2024:KHC-D:17256 RSA No. 101552 of 2022 suit. There is no infirmity or illegality committed by the Courts below in arriving at the conclusion that the plaintiff is entitled for share, there arises no substantial question of law for consideration in this second appeal against concurrent findings of facts recorded by the courts below. The appellant has made out no grounds to condone the delay or on merits, accordingly, I.A. No.1/2022 is rejected, and consequently the appeal stands dismissed.
14. Pending interlocutory applications, if any, do not survive for consideration.
SD/-
(JUSTICE K.S.HEMALEKHA) RH CT:PA LIST NO.: 1 SL NO.: 42