Allowed

Sri. Patalappa v. Sri. Kempanna

Karnataka HC12 Aug 2021RSA/631/2019

Case brief

AI extract

What is this about?

In a second appeal regarding specific performance of a sale agreement, the High Court allowed the appeal holding that sufficient cause existed to condone a 245-day delay, as the appellants were occupied with a husband's rehabilitation treatment, citing Supreme Court precedent on liberal interpretation of Section 5 Limitation Act.

What did the court decide?

The Regular Second appeal is allowed; the order dated 13.02.2019 dismissing the delay application is set aside; matter remitted to First Appellate Court for fresh adjudication.

Sri. Patalappa Vs Sri. Kempanna — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No. 631/2019

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BETWEEN:

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SRI PATALAPPA S/O LATE MUNIRASAPPA AGED ABOUT 50 YEARS

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SMT. ANJINAMMA W/O PATALAPPA AGED ABOUT 40 YEARS

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MISS PREETHI D/O PATALAPPA AGED ABOUT 24 YEARS

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ALL ARE RESIDING AT NO.165 7^TH CROSS, AMBEDKARNAGAR NEAR GLOBAL SCHOOL HOPERAM-WHITEFIELD MAIN ROAD BENGALURU-560 066.

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... APPELLANTS

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(BY SRI. M L GOWDA, ADVOCATE)

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AND:

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SRI KEMPANNA S/O LATE MUNIARASAPPA AGED ABOUT 57 YEARS

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SRI D K RAJANNA S/O LATE DODDA ANJINAPPA AGED ABOUT 55 YEARS

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BOTH RESPONDENTS ARE R/AT KOORANDAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR District-563 130.

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... RESPONDENTS

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(BY SRI VIJAYA KUMAR K, ADVOCATE; NOTICE TO R2 IS DISPENSED WITH)

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THIS R.S.A. IS FILED U/S. 100 READ WITH ORDER XLII RULE 1 OF CPC AGAINST THE ORDER DATED 13.02.2019 PASSED ON IA NO.1 IN R.A.NO.7/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALUR, DISMISSING THE IA NO.1 FILED UNDER SECTION 5 OF THE LIMITATION ACT AND CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 06.04.2017 PASSED IN OS.NO.243/2012 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MALUR.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by defendant Nos.1 to 3 challenging

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the order dated 13.02.2019 passed in RA.No.7/2018 on the file of the Senior Civil Judge, Malur, dismissing the IA No.1

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filed under Section 5 of the Limitation Act, consequently, dismissing the appeal filed against the judgment and decree dated 06.04.2017 passed in OS.No.243/2012 on the file of the II Additional Civil Judge and JMFC, Malur, in decreeing the suit of the plaintiff.

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that plaintiff has entered into an Agreement of Sale dated 19.05.2010 with the defendants to purchase the suit schedule property for total consideration of Rs.1,50,000/and has paid Rs.1,45,000/- to defendant No.1 on the date of Agreement of Sale as a part of sale consideration and agreed to conclude the sale transaction at the earliest. However, in view of non adhering to the terms and conditions specified in the Agreement of Sale dated 19.05.2010, the plaintiff has filed a suit before the trial Court seeking specific performance of the contract.

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After service of summons, defendant No.1 entered appearance and resisted the suit by filing written statement denying the averments made in the plaint.

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On the basis of the rival pleadings, the trial Court

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has formulated the following issues for its consideration:

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Whether the plaintiff proves that, on 19.05.2010 1^st Defendant had executed sale agreement to sell the suit schedule property in favour of plaintiff for a sale consideration of Rs.1,50,000/- and received an advance amount of Rs.1,45,000/- on the same day?

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Whether the plaintiff further proves that he is always ready and willing to perform his part of contract?

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Whether the defendants proves that, the sale agreement dated 19.05.2010 is created, concocted, fabricated one?

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Whether the plaintiff is entitled for the plaint relief?

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In order to establish their case, plaintiff examined himself as PW1 and examined another two witnesses as PW2 and PW3 and got marked 14 documents as Exs.P1 to P14. On the other hand, defendants have not adduced any evidence before the trial Court.

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The trial Court, after considering the material on record, by its judgment and decree dated 06.04.2017, decreed the suit of the plaintiff, directing the defendant Nos.1 to 3 to execute the registered Sale Deed in favour of plaintiff in respect of suit schedule property in terms of

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Agreement of Sale dated 19.05.2010 and being aggrieved by the same, the defendants have preferred Regular Appeal in RA.No.7/2018 on the file of First Appellate Court. The said appeal was resisted by the plaintiff. At the time of filing of Regular Appeal, there was delay of 245 days in filing the appeal. The First Appellate Court after re-appreciating the facts on record, by its order dated 13.02.2019 dismissed the IA No.I filed by the defendants under Section 5 of Limitation Act and declined to allow the IA No.I and consequently, the appeal came to be dismissed. Being aggrieved by order of dismissal by the First Appellate Court, defendant Nos. 1 to 3 have preferred this Regular Second Appeal under Section 100 of CPC.

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Heard Sri.M.L.Gowda, learned counsel appearing for the appellants and Sri.Vijaya Kumar.K., learned counsel appearing for respondent No.1.

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Sri.M.L.Gowda, learned counsel for the appellants contended that the First Appellate Court could have extended liberal approach while considering the application

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for condonation of delay and concluded the matters on merits. However, the reasons assigned by the First Appellate Court while dismissing the application in IA No.1 are not justifiable, which call for interference in this appeal.

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Per contra, Sri.Vijayakumar K., Learned counsel for the respondent No.1 supported the impugned order and contended that the reasons assigned by the First Appellate Court in declining to entertain the application on the ground of delay do not call for interference in this appeal.

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Having heard the learned counsel appearing for the parties and perused the material on record, the appeal is admitted on the following substantial question of law:

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i. Whether the First Appellate Court is justified in dismissing IA.No.I without considering “sufficient cause” shown by the defendants in the application ?

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I have carefully considered the findings recorded

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by the First Appellate Court on considering IA No.1 filed by the defendants under Section 5 of the Limitation Act. The

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First Appellate Court while entertaining IA No.I, has recorded a finding that the appellants were well aware about the entire suit proceedings and were attending the court proceedings regularly till conclusion of the suit and as such, opined that the appellants are not diligent to file the appeal on time and the ground urged on health of husband of defendant No.2, was rejected and also come to the conclusion that defendants were not diligent in prosecuting the case. Hence, dismissed the IA No.I.

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I have carefully perused the reasons set out in

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the affidavit filed by the appellants herein to condone the delay in filing the appeal. Though the First Appellate Court had come to the conclusion that appellant No.2 was well aware about the proceedings in the suit, however, appellant No.2 in her cross-examination deposed that her husband was taking treatment in Dare Foundation (Drug, alcohol Re-habitation and Education), Bengaluru and she was with her husband at the time of treatment and she could not give instructions to her counsel to file appeal on time. In that

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view of the matter, the First Appellate Court ought to have liberally considered the reasons set out in the affidavit filed along with delay application in IA.No.I. It is the consistent view taken by the Hon’ble Supreme Court in various decisions (See AIR 1998 SC 3222 and AIR 1998 SC 2276) that "sufficient cause" appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. It is the case of appellant No.2 that her husband was admitted to Dare Foundation, Bengaluru for treatment and therefore, she was not able to consult her counsel on time to file an appeal. In view of law laid down by the Hon’ble Supreme Court in the case of Basawaraj &

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Another Vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746 , the First Appellate Court ought to have condoned the delay in filing the appeal to meet the ends of justice. It is well settled law that length of delay is not material, but the reasons stated thereof for condonation of delay is to be examined while examining the application under Section 5 of Limitation Act. In the present case,

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explanation offered by appellant No.2 for condonation of the delay is acceptable. In the event if appellants loses the appeal on the ground of delay, more hardship would be caused to appellant No.2 and as such, without going into the merits of the case, I am of the considered view that the First Appellate Court ought to have condone the delay of 245 days in filing the appeal. In that view of the matter, I proceed to pass the following

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ORDER:

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