Allowed

Laxman S/O Bhimappa Gurav @ Hugar v. Sabu S/O Tamanna Santi

Karnataka HC2 Dec 2022MFA/100203/2021

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a Miscellaneous First Appeal FIRing an order denying condonation of delay for restoring a dismissed appeal. The court held that substantial justice prevails over procedural limitation in restoration cases but directed costs to be paid by the appellant to balance equities and prevent harassment.

What did the court decide?

Impugned order set aside; Civil Misc.No.1/2019 and appeal R.A.No.5/2014 restored; appellant to pay Rs.10,000 costs and potential Rs.64,135 contingent on appeal outcome.

Laxman S/O Bhimappa Gurav @ Hugar Vs Sabu S/O Tamanna… — Specific Performance | Karnataka HC (2022)

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MFA No. 100203 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2^ND DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ MISC. FIRST APPEAL NO. 100203 OF 2021 (CPC)

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BETWEEN:

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LAXMAN, S/O BHIMAPPA GURAV @ HUGAR, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: KONNUR, TQ: JAMAKHANDI, NOW AT JAINAPUR, TQ: VIJAYAPURA, DIST: VIJAYAPURA-586101.

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…APPELLANT

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(BY SRI. ANAND R.KOLLI, ADVOCATE)

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AND:

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SABU S/O TAMMANNA SANTI, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: KONNUR, TQ: JAMAKHANDI, DIST: BAGALKOTE-587301.

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…RESPONDENT

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(BY SRI. S.L.MATTI, ADVOCATE)

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THIS MFA IS FILED UNDER ORDER XLIII RULE (t) OF C.P.C., AGAINST THE ORDER DATED 10.07.2019 PASSED IN CIVIL MISC.NO.1/2019 ON THE FILE OF THE I ADDL.DISTRICT AND SESSIONS JUDGE, BAGALKOT, SITTING AT JAMKHANDI, DISMISSING THE I.A.NO.1 FILED UNDER SECTION 5 OF THE LIMITATION ACT.

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THIS APPEAL COMING ON FOR HEARING I.A. THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 100203 of 2021

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JUDGMENT

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This appeal is filed challenging the correctness of an order dated 10.07.2019 passed by the I Addl.District and Sessions Judge, Bagalkot in Civil Misc.No.1/2019.

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The suit in O.S.No.12/2007 was filed for specific performance of an agreement of sale which was decreed and the defendant was directed to execute and convey the suit schedule property to the plaintiff. The defendant filed R.A.No.5/2014 though belatedly challenging the said judgment and decree. The appeal was transferred to the Court of the Addl.District and Sessions Judge, Bagalkot sitting at Jamkhandi on 31.03.2015. The appeal was listed from time to time, however the defendant did not choose to address arguments and therefore, the appeal was dismissed for non-prosecution on 21.07.2017. After lapse of one year, the plaintiff filed Execution Petition No.53/2018. Thereafter, the defendant having realized the dismissal of R.A.No.5/2014, filed a Civil Misc.No.1/2019. The defendant pleaded in the petition that he was suffering from mental issues and therefore consulted a doctor at Vijayapura who

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MFA No. 100203 of 2021

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examined him and referred him for a CT Scan at Sanjeevini CT Scan Centre, Vijayapura. The defendant claimed that he was treated by the doctor at Vijayapura. However, he was not cured of the mental illness and thereafter, he suffered a stroke. He availed treatment at Nagarahalli at Chikkodi where he was relieved to an extent. Thereafter, when he approached his counsel, he found that the appeal was dismissed and therefore, he took steps to file miscellaneous petition for restoration of the appeal which was stated to be belated. He stated that the reason for the delay in filing the application for restoration was beyond his control and was neither deliberate nor intentional.

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The miscellaneous application was contested by the plaintiff by filing objections contending that the Executing Court had already executed the sale deed and the cause shown for the delay was invented for the purpose of the case and that the defendant was hale and healthy.

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Based on the oral and documentary evidence, the

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appellate Court dismissed the application on the ground that

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MFA No. 100203 of 2021

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the CT scan placed on record did not indicate any abnormality and that the reason assigned by the defendant for not appearing before the Court was not believable. Hence, it dismissed the application filed for condonation of delay and consequently, rejected Civil Misc.No.1/2019. Being aggrieved by the same, the present appeal is filed.

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Learned counsel for the defendant/appellant submitted that even before dismissal of the appeal on 21.07.2017, the appellant had undergone a CT scan on 21.02.2015 and therefore, it cannot be said that the defendant was not suffering from any mental issue. He submitted that the defendant had suffered paralytic stroke and he availed the treatment from a practioner of native medicine. He therefore prayed that the delay in filing the petition for restoration of the appeal was due to a reason beyond his control. He therefore prayed that an opportunity be granted to the defendant to contest the suit on merits, having regard to the fact that the defendant is now confronted with a decree of specific performance which could result in deprival of his property.

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MFA No. 100203 of 2021

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Per contra, learned counsel for the plaintiff/

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respondent submitted that the defendant was throughout not diligent in pursuing the appeal. He submitted that the appeal was filed belatedly and even after the dismissal of the appeal, the application for restoration of the appeal was filed belatedly. He submitted that the cause shown for the delay was not genuine as found by the appellate Court. He submitted that he has already obtained a deed of absolute sale in E.P.No.53/2018 by paying stamp duty of Rs.58,465/and registration fee of Rs.5,670/- and therefore, if the appeal is restored, he will be put to great loss and injury. Learned counsel submitted that the unexplained delay cannot be condoned and in the present case, the cause shown was spurious. In this regard, he relied upon the judgments of the Hon’ble Apex Court in Civil Appeal No.6796/2021, Civil Appeal No.10379/2018 and judgment of the Co-ordinate Bench of this Court in RSA No.114/2014 and in the case of Commissioner, Bangalore Development Authority V/s Mruthyunjaya [2017 (2) KCCR 1116] . He

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MFA No. 100203 of 2021

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therefore contended that the appeal filed by the defendant/ appellant be dismissed.

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It is no doubt true that the Limitation Act is founded on public policy. It is equally true that the Courts should not upset settled issues or issues more particularly when third parties have come into being. However while substantive justice is pitted against the procedural law, it is the substantive right that have to be given precedence. In the case on hand, 2 acres of land was the subject matter of the suit and the defendant/appellant had suffered a decree of specific performance in respect of that 2 acres of land. The right of appeal is a statutory right and the appellant is entitled for reconsideration of the dispute between the parties. The force with which the law of limitation is applied to appeals against original decrees cannot be applied to an application for condonation of delay in filing a proceeding for restoration of a dismissed proceeding. The Courts can balance the equities by directing the defaulting party to adequately compensate the other and also by putting the defaulting party on a leash for expeditious disposal of the

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MFA No. 100203 of 2021

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proceedings. This procedure would meet the ends of justice and also rein in the defaulting party.

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Though the order passed by the trial Court cannot be doubted, yet in the interest of justice, it is appropriate that an opportunity is granted to the appellant to contest the appeal on merits. Since the appeal itself is filed in the year 2014, this Court considers it appropriate to not only allow the miscellaneous application filed by the appellant/ defendant for restoration of the appeal but also the appeal. This would only shorten the litigation time and also enable the appellate Court to dispose of the appeal on merits. However this Court cannot loose sight of the fact that the appellant/defendant has harassed the plaintiff/respondent from the year 2014 till date which cannot go unpunished. Therefore, it is appropriate to direct the defendant/appellant to pay costs of Rs.10,000/- to the plaintiff/respondent before the appellate Court in R.A.No.5/2014 on the next date of hearing.

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MFA No. 100203 of 2021

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In view of the above, this appeal is allowed and

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the impugned order dated 10.07.2019 is set aside, subject to payment of cost of Rs.10,000/-. The petition for restoration in Civil Misc.No.1/2019 is allowed and the proceedings in R.A.No.5/2014 is restored on the file of the First Appellate Court. It is made clear that if the appeal filed in R.A.No.5/2014 is allowed, then the defendant/appellant shall be liable to pay additional cost of Rs.64,135/- being the cost of registration incurred by the plaintiff/respondent. If the appeal is dismissed, then the defendant/appellant is exempt from payment of such cost.

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The party shall appear before the appellate Court in R.A.No.5/2014 on 16.12.2022. The appellate Court is requested to dispose of the appeal as expeditiously as possible at any rate within 22.04.2023.

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In view of disposal of appeal, pending interlocutory applications does not survive for consideration.

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SD/- JUDGE

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CLK

Laxman S/O Bhimappa Gurav @ Hugar v. Sabu S/O Tamanna Santi

Case brief

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Laxman S/O Bhimappa Gurav @ Hugar v. Sabu S/O Tamanna Santi

Case brief

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