Dismissed

Sankuru Venkata Reddy v. Sankuru Varalakshmi

Andhra Pradesh HC5 Dec 2023SA/399/2022

Case brief

AI extract

What is this about?

This order dismisses a petition filed under Section 5 of the Limitation Act seeking to condone a delay of 1250 days in filing a second appeal. The court rejected the petitioners' explanation regarding the death of their counsel and misplacement of records, finding they had knowledge of the dismissal of their previous appeal in October 2021 prior to filing for certified copies.

What did the court decide?

I.A.No.1 of 2022 is dismissed and the second appeal is rejected. No order as to costs.

Sankuru Venkata Reddy Vs Sankuru… — Civil Procedure and Limitation | Andhra Pradesh HC (2023)

¶1

BSS,J

¶2

I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶3

¶4

HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

¶5

I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶6

ORDER:

¶7

I have heard learned Senior Counsel Mr.P.Rajasekhar,

¶8

representing on behalf of Mr.E.V.V.S.Ravi Kumar, learned counsel for the petitioners as well as Mr.T.V.Jaggi Reddy, learned counsel for the respondents.

¶9

This petition is filed by the petitioners/appellants/defendants under Section 5 of Limitation Act to condone the delay of 1250 days in preferring the second appeal against the judgment and decree passed in A.S.No.186 of 2012 on the file of IV Additional District Court, Kakinada.

¶10

The case of the petitioners/defendants in brief is that R1, R2 have filed O.S.No.74 of 2010 on the file of II Additional Senior Civil Judge Court, Kakinada, for partition of plaint schedule property into 15 equal shares and to allot two such shares to them and for mesne profits. The petitioners submit that they denied the contention of the respondents by stating that they have no right to claim share in the plaint schedule property and they further stated that suit schedule property is the absolute property of D2 to D4. It is the contention of the petitioners that the trial Court erroneously decreed the suit by passing a preliminary decree against which they preferred A.S.No.186 of

¶11

I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶12

¶13

2012 on the file of VI Additional District Court, Kakinada, which was dismissed on erroneous appreciation of law and facts. They submit that they preferred the present second appeal having raised substantial question of law to be decided by this Court. The main contention of the petitioners is that the judgment in A.S.No.186 of 2012 was pronounced in the month of December 2018, but they do not know whether their previous counsel Mr.M.V.J.Ramagopal, filed any copy application for obtaining certified copies of judgment and decree and later due to Covid-19 and also due to the death of their counsel in the month of August 2021, they could not take any steps to prefer second appeal before this Court. The petitioners submit that they approached the counsel, who is looking after the office of their previous counsel and came to know about non-filing of second appeal and then immediately applied for certified copies and preferred the second appeal, due to that the delay of 1250 days occurred. They pray to condone the delay.

¶14

The petitioners have also filed additional affidavit of the first petitioner stating that the judgment in first appeal was pronounced on 26.12.2018 and appeal has to be filed within 90 days from the date of receipt of certified copies of judgment and decree and after disposal of the appeal, they were informed about the result and then they made a request to obtain certified copies as they were advised to prefer second appeal before this Court and they were under the impression that copy

¶15

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶16

¶17

application was made and they were enquiring the advocate clerk, who is looking after the case, who used to inform that the copy was not prepared and in the meantime, Covid-19 was started as the first petitioner is aged and has not came out from the house and subsequently came to know that in the month of August 2021, his counsel died. They also stated that on enquiry they came to know that advocate clerk, who is looking after the affairs of their case stopped coming to the office and found that he has not taken any steps to get the certified copies and advocate clerk kept them in dark and their record was also misplaced in the office and after that one of the junior advocate in the office of their counsel obtained certified copies and then they filed the present second appeal. They have stated that delay in presenting the appeal is neither wilful nor wanton but delay occurred due to the acts of their advocate clerk and if the delay is not condoned, they will be put to serious loss. They pray to condone the delay.

¶18

The respondents have filed counter affidavit denying the averments in the affidavit of the first petitioner. It is the contention of the respondents that judgment in A.S.No.186 of 2012 was pronounced on 26.12.2018 but copy application was made on 04.08.2022 which was delivered on 17.08.2022 by the lower appellate Court and the present

¶19

appeal was filed on 20.08.2022, i.e. more than 3½ years after the pronouncement of judgment, the second appeal was filed. They submit

¶20

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022 4

¶21

that the petitioners have not assigned any cogent reasons for the abnormal delay of 1250 days in filing the present second appeal. They also stated that the Hon‟ble Apex Court and this Court had time and again stated that day to day delay has to be explained. They further stated that the pandemic was from March 2020 but the judgment was pronounced on 26.12.2018 and the copy application was made only on 04.08.2022 and whereas their counsel, who is said to be died in the year 2021. It is also the contention of the respondents that the appellants are aware of passing of judgment in A.S.No.186 of 2012 in the year 2018 itself, who are also aware of filing of final decree petition who also received notice from the trial Court, but failed to assign any cogent reasons for condoning the delay of 1250 days in filing the appeal. They pray to dismiss the petition.

¶22

The learned Senior Counsel representing the petitioners would submit that due to the death of counsel whom the petitioners have engaged, the petitioners could not prefer the appeal in time. He would further submit that simply because there are concurrent findings, that itself is not a ground to reject the contention of the petitioners and petitioners are having good case to succeed in the second appeal as admittedly daughters are not made as parties in the suit for partition, which is not maintainable. He further argued that due to the fault of advocate or advocate clerk, parties shall not made to suffer. It is also

¶23

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶24

¶25

the contention of the learned counsel for the petitioners that to the additional affidavit of the first petitioner, no additional counter is filed

¶26

by the respondents denying its contents. He further argued that after receiving the certified copies of judgment and decree, petitioners have filed appeal on 20.08.2022, and while considering the petition under Section 5 of Limitation Act, this Court can also consider the merits of the case to some extent and suit filed by the respondents/plaintiffs is bad for non-joinder of necessary parties, which plea was raised by the petitioners/defendants in their written statement, but it was not discussed and decided by the trial Court and also first appellate Court. He relied on the following precedent law:

¶27

N.Balakrishnan – Appellant Vs. M.Krishnamurthy -

¶28

Respondent¹ , wherein it is held at paras 8 to 13, which reads as under:

¶29

“8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

¶30

It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not

¶31

1 AIR 1998 SC 3222

¶32

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶33

¶34

say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.

¶35

The reason for such a different stance is thus: The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

¶36

Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential

¶37

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶38

¶39

anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

¶40

A Court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

¶41

It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.”

¶42

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶43

¶44

Divisional Manager, Plantation Division, Andaman and Nicobar Islands – Appellant Vs. Munnu Barrick and Others - Respondents² , wherein it is held that when serious question of law raised by the appellant, application for condonation of delay has to be allowed.

¶45

U.P.State Road Transport Corporation – Appellant Vs. Kedar Singh and Other - Respondents³ , wherein Hon‟ble High Court of Allahabad held that mistake of counsel or his office, parties should not suffer for such lapses or negligence. In such a case, delay has to be condoned.

¶46

Urban Improvement Trust – Appellant Vs. Poonam Chan - Respondent⁴ , wherein Hon‟ble High Court of Rajasthan by following the ratio laid down by Hon‟ble Apex Court in State of Haryana Vs. Chandra Mani (1996(3) JT (SC) 371= (AIR 1996 SC 1623) held at para 19, which reads as under:

¶47

―19. Non it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Indian Limitation Act and dismissing appeals as barred by lapse of time, the Courts of law are required to put a glance as a condition precedent on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merits ordinarily efforts should

¶48

2 AIR 2005 SC 1158

¶49

3 AIR 1991 ALLAHABAD 317

¶50

4 AIR 1997 Rajasthan 134

¶51

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶52

¶53

be made to decide the appeals on merits. Failure to do so in the present appeal by learned lower appellate Court has resulted in miscarriage of justice and as such, its judgment and decree under appeal is liable to be set aside.‖

¶54

Ram Nath Sao alias Ram Nath Sahu and others – Appellants V. Gobardhan Sao and others - Respondents⁵ , wherein Hon‟ble Apex Court while considering Order XXII Rule 9 and Section 5 of Limitation Act Petition, when the petition is filed to condone the delay in bringing the legal representatives by following N.Bala Krishnan’s case (referred supra) held that Court should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party.

¶55

He prays to allow the petition.

¶56

Learned counsel for the respondents would submit that the petitioners failed to explain sufficient cause to condone the huge delay in presenting the second appeal and the reason which they have stated is only created for the purpose of filing this second appeal. He would further submit that law of limitation is enacted under public policy and when right is accrued to the party due to the lapse of time, it cannot be taken away without any sufficient reason. He argued that judgment in first appeal was pronounced on 26.12.2018 but they applied for

¶57

5 AIR 2002 SC 1201

¶58

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶59

¶60

certified copies on 04.08.2022 and counsel, who conducted the case before the first appellate Court said to be died in the year 2021. It is the contention of learned counsel for the respondents that petitioners came up with second appeal with a delay condonation petition after they received notices in final decree petition from trial Court and they have got knowledge about filing of final decree petition on 21.10.2021 itself as per Court Proceedings sheet filed with regard to the daily status in final decree petition filed by the respondents, but they have chosen to file appeal on 20.08.2022 which is nearly one year after they got knowledge about filing of final decree petition, which itself shows that petitioners have got knowledge about dismissal of their appeal. He further argued that learned Appellate Judge also framed necessary issue with regard to non-joinder of necessary party on which petitioners are now stated that it is a substantial question of law and the appellate Court extensively discussed and held the same against the petitioners. He argued that there are no merits in the second appeal and no sufficient cause is shown by the petitioners to condone the huge delay in presenting the appeal. He relied on the following precedent law:

¶61

Ajay Dabra – Appellant Vs. Pyare Ram and Others -

¶62

Respondents⁶ , wherein it is held that the Court should not be pedantic in their approach while condoning the delay, and explanation of each

¶63

6 (2023) AIR (SC) 698

¶64

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶65

¶66

day‟s delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. It is held at para

¶67

– 10, which reads as under:

¶68

“10. This Court, while emphasizing the scope of Section 5 of the Limitation Act, in the case of Mahant Bikram Dass Chela versus Financial Commissioner, Revenue, Punjab, Chandigarh And Others(1977) 4 SCC 69 has held:

¶69

“21. Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day‟s delay. These and similar considerations which influence the decision of Section 5 applications are out of place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in presenting it. Thus, in the instant case, there was no occasion to invoke the provisions of Section 5, Limitation Act, or of Rule 4, Chapter I of the High Court Rules. If the Division Bench were aware that Rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been filed within the period of limitation, rendering it inapposite to consider whether the delay caused in filing the appeal could be condoned.”

¶70

This Court in the case of Basawaraj and Another versus Special Land Acquisition Officer(2013) 14 SCC 81 while rejecting an application for condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows:

¶71

“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

¶72

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶73

¶74

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 bona fide 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.” Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant.

¶75

Lanka Venkateswarlu (D) by L.Rs. – Appellant Vs. State of A.P. and Others - Respondents⁷ , wherein Hon‟ble Apex Court explained the scope of „liberal approach‟, „justice oriented approach‟, „substantial justice‟ and held at para 26, which reads as under:

¶76

“26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by

¶77

7 (2011) AIR (scw) 1459

¶78

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶79

¶80

the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.”

¶81

He prays to dismiss the petition.

¶82

Now, the point that arises for consideration of this Court is, “ Whether there are any grounds to condone the delay of 1250 days in presenting the appeal?”

¶83

POINT: Before going to the merits of the case, it would be beneficial to quote Section 5 of Limitation Act, which reads as under:

¶84

“ Extension of prescribed period in certain cases:

¶85

“ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.‖

¶86

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶87

¶88

The Hon‟ble Apex Court in Pundlik Jalam Patil (D) by Lrs. Vs.

¶89

Executive Engineer Jalgaon Medium Project & Anr., in SLP (C) Nos.21011-21014 of 2007 in Civil Appeal No.6414-6417 of 2008 Judgment dated 03-11-2008 , wherein it was held that:

¶90

― 22. Basically the laws of Limitation are founded on public policy. In Halsbury's Laws of England, 4^th Ed., Vol.28, P.266, para 605, the policy of the Limitation Acts is laid down as follows:

¶91

"The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely, (i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence."

¶92

23. Statutes of limitation are sometimes described as `statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others vs. Santa Singh and others [(1973) 2 SCC 705] has observed: "the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or latches". In Motichand vs. Munshi [(1969) 2 SCR 824], this court observed that this principle is based on the maxim "interest republicae ut sit finis litum, that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to

¶93

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶94

¶95

ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression.

¶96

It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span 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.‖

¶97

In Balawant Singh (dead) vs. Jagadish Singh and others⁸ , Hon‟ble Apex Court held at paragraphs 25 and 26 which reads as under:

¶98

“ 25. We may state that even if the term ―sufficient cause‖ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of ―reasonableness‖ as it is understood in its general connotation.

¶99

26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done

¶100

8 (2010) 8 SCC 685

¶101

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶102

¶103

to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly‖.

¶104

In Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai⁹ , the Hon‟ble Apex Court held at paras 23, which reads as under:

¶105

―What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

¶106

24. What colour the expression ―sufficient cause‖ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

¶107

Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that

¶108

9 (2012) 5 SCC 157

¶109

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶110

¶111

certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years.‖

¶112

In Sabbir (Dead) through LRs…Appellants Vs. Anjuman (since

¶113

deceased) through LRs…Respondents in Civil Appeal No.6075 of 2023 dated 22-09-2023 Hon‟ble Apex Court discussed, rigour of law of limitation by referring a decision in Basawaraj vs. Land Acquisition Officer¹⁰ , as under :

¶114

―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.

¶115

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated

¶116

10 (2013) 14 SCC 81

¶117

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶118

¶119

unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, P. 266:

¶120

―605. Policy of the Limitation Acts.— The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.‖

¶121

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510], Rajender Singh v. Santa Singh [(1973) 2 SCC 705: AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448: (2009) 5 SCC (Civ) 907].)’

¶122

(emphasis supplied)

¶123

This Court has to consider the petition filed by the petitioners by applying the law laid down by Hon‟ble Apex Court in the above referred decisions.

¶124

In the present case, respondents have filed the suit for partition in respect of immovable house property with vacant site, and the same was decreed by the trial Court allotting two shares out of 15 shares to the respondents/plaintiffs. Then the petitioners herein have preferred

¶125

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶126

¶127

A.S.No.186 of 2012, which was dismissed by the first appellate Court on 26.12.2018 confirming the judgment and decree passed by the trial Court.

¶128

A perusal of judgment of the first appellate Court at page 5 para 8, a specific point has been framed that “Whether the suit is bad for non-joinder of all legal heirs of Nageswaramma as contended by the appellants” and it is answered by the learned appellate Judge at page 12 para „H‟. Therefore, it is not correct to say that appellate Court has not discussed the point raised by the petitioners with regard to the maintainability of the suit for non-joinder of necessary parties in the suit. Admittedly, petitioners have applied for certified copies of judgment and decree in A.S.No.186 of 2012 on 04.08.2022 which was received on 17.08.2022 and presented the second appeal on 20.08.2022 with a delay of 1250 days. The reason which the first petitioner has stated in the affidavit at first instance is that judgment of first appellate Court was pronounced in the month of December 2018 but they do not know whether his previous counsel filed any copy application for obtaining the certified copies of judgment and decree who had said to be died in the month of August 2021, due to that they could not prefer the appeal in time. They also stated at para 8 of the affidavit of the first petitioner that they approached the counsel who is looking after the office of the deceased counsel and came to know

¶129

I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶130

¶131

about non-filing of the second appeal and then immediately they applied for certified copies and filed the second appeal. Whereas, in the additional affidavit of the first petitioner, it is stated that after disposal of appeal suit, they were informed about the result and then they made a request to obtain certified copies as they were advised to prefer second appeal before this Court and they were under the impression that copy application was made and they have thrown blame on advocate clerk that he has not applied for certified copies and records also misplaced. Now, it would be beneficial to peruse contents of material papers page No.8 filed along with counter affidavit of the respondents, which is case status of final decree petition dated 21.10.2021 which shows that learned counsel for the petitioners present and no representation on behalf of R2 to R4, i.e. petitioners herein and for counters of R2 to R4, time extended till 16.11.2021. After that also, on 03.01.2022 as petitioners herein who are respondents in final decree petition not filed counters, due to that, it is treated that they have no counter. After that on 07.01.2022, advocate Commissioner was appointed for division of properties, who also filed report and on 14.07.2022 objections filed and then arguments on behalf of petitioners i.e. respondents herein in final decree petition also heard and case was posted by the trial Court to 18.07.2022 for hearing arguments on behalf of respondents.

¶132

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶133

¶134

All these admitted facts which clearly suggest that petitioners are having knowledge about dismissal of their first appeal prior to applying of certified copies, due to that reason only they made appearance in the final decree petition by engaging an advocate, but failed to file any counter and then applied for certified copies of judgment and decree of first appellate Court on 04.08.2022 after advocate commissioner filed report in final decree petition and then came up and filed this second appeal with a delay of 1250 days. There is no dispute with regard to the ratio laid down by Hon‟ble Apex Court and Hon‟ble High Courts relied on by learned counsel for the petitioners but the huge delay in presenting the appeal can be condoned if the petitioners able to show sufficient cause in filing the same. In the present case, petitioners have got knowledge about dismissal of first appeal filed by them even prior to filing of copy application, which they filed only after the Advocate Commissioner filed report in the final decree petition, wherein they engaged a counsel, which itself shows that the reason stated by the petitioners, is not acceptable and they are throwing blame on advocate clerk to cover up their latches. The Hon‟ble Apex Court in Majji Sannemma @ Sanyasirao – Appellant Vs. Reddy Sridevi & Others – Respondents, in Civil Appeal No.7696 of 2021 in similar circumstances when delay of 1011 days in presenting the second appeal is condoned after following the ratio laid down in Pundlik Jalam Patil(D) by Lrs.

¶135

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶136

¶137

Case(referred supra) and Basawaraj Vs. Land Acquisition Officer’s

¶138

Case (referred supra) held at para 8, which reads as under:

¶139

―8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.‖

¶140

In the present case also, this Court is of an opinion that the reasons which petitioners have stated for not preferring the second appeal in time are not sufficient as they have got knowledge about dismissal of their first appeal prior to applying of certified copies which falsifies the contention of the first petitioner in his affidavit and also in the additional affidavit which contents are also contra to some extent with regard to the knowledge of disposal of first appeal. Hence, this Court did not find any cause much less sufficient cause to condone the delay of 1250 days in presenting the appeal.

¶141

BSS,J I.A.No.1 of 2022 in/and S.A.No.399 of 2022

¶142

¶143