Second appeal dismissed for lack of merit as the Second Appellate Court rightly rejected the application for condonation of delay under Section 5 of the Limitation Act due to inordinate delay, treating limitation as a substantive law.
The appeal was dismissed at the stage of admission itself.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 21ST DAY OF OCTOBER, 2022
BEFORE
THE HON’BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.100999 OF 2018 (MON)
BETWEEN:
MAHADEV, S/O. MAHALINGAPPA DANANNAVAR AGE: 62 YEARS, OCC: AGRICULTURE, R/O:VAIBHAV INVESTMENT CONSORTIUM SECURITY PVT. LTD. CIVIL HOSPITAL, NEAR CIRCLE RAMDURG. NOW R/O: PLOT NO.107, SECTOR NO.2, RATNABAI PUJARI BUILDING, SHIVABASAVA NAGAR, BELAGAVI-10, DIST: BELAGAVI.
...APPELLANT
(BY SRI. S.A. SANDUR FOR SRI. K.L.PATIL, ADVOCATE.)
AND:
… RESPONDENTS
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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.10.2018 MADE IN R.A.NO.54/2016 PASSED BY PRL. SENIR CIVIL JUDGE, SAUNDATTI, THEREBY CONFIRMING JUDGMENT AND DECREE DATED 08.07.2014 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, SAUNDATTI, IN O.S.NO.237/2008, ETC.,.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.S.A.Sondur, learned counsel for appellant has
appeared in person.
2. The appeal is posted for admission after issuing notice to respondents.
referred to as per their rankings before the trial Court.
Plaintiff filed a suit for recovery of money of
Rs.72,000/- (Rupees Seventy Two Thousand only) and blank cheque bearing No.544071 from the defendants contending that he and the defendants constituted a partnership firm. It is the specific plea of the plaintiff that
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he invested Rs.72,000/- (Rupees Seventy Two Thousand only) in the firm and after dissolution of the firm, he is entitled for the said amount. The defendants contended that they equally divided the partnership amount along with plaintiff at the time of dissolution of the firm and since plaintiff had utilized the money of the firm, his share was not given with his consent. Among other grounds they prayed for the dismissal of the suit.
Based on the above pleadings, the Trial Court has framed the following issues:
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utilize the profit amount of the said company?
To substantiate, plaintiff was examined as PW1 and produced five documents which were marked as Ex.P.1 to P5. The defendants neither adduced any oral evidence nor produced any documents.
On the trial of the action, the suit came to be decreed. Aggrieved by the Judgment and Decree, the second defendant preferred an appeal and an application under Section 5 of the Limitation Act was also filed seeking condonation of delay. The First Appellate Court dismissed the application and consequently the appeal came to be dismissed. Hence, this regular second appeal is filed under Section 100 of CPC is filed.
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The suit giving rise to this appeal was brought by the plaintiff for recovery of money. The Trial Court in extenso referred to the material on record and concluded that plaintiff has proved his case and directed defendants to pay amount of Rs.72,000/- (Rupees Seventy Two Thousand only) along with interest at the rate of 8% per annum from the date of suit till realization.
The second defendant preferred an appeal before the Appellate Court. He also filed an application under Section 5 of the Limitation Act to condone the delay in filing the appeal.
Suffice it to note that the Trial Court decreed the suit on 08.07.2014. The appeal came to be filed in the year 2018. It was contended by the second defendant that he did not file written statement and his counsel before the Trial Court did not inform him about the progress of the suit.
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Hence, he was not aware of the Judgment and Decree passed by the Trial Court. He has also pleaded that he received notice in EP.No.11/2014 and it is only then he came to know that he has suffered a decree. Among other grounds, he sought to condone the delay and remand.
Sri.S.A.Sondur., learned counsel in presenting his argument strenuously urged that the Appellate Court has erred in dismissing the application for condonation of delay.
I have heard the contention urged on behalf of appellant with utmost care.
I am unable to accept the said contention. Limitation Act is a substantive law and its provision must be adhered to in a manner than over a valuable right accrues in favor of one party, as a result unexplained sufficient of reasonable cause and directly as a result of negligence, default, or inaction of the other party, such a right cannot be taken away lightly and in a routine manner.
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In the present case, the second defendant is assailing
the Judgment and Decree of the year 2014, by filing an appeal in the year 2016. There is an inordinate delay in preferring the appeal. The Appellate Court has examined the contents of the application and the reasons accorded to condone the delay and has refused to accept the reasons and ultimately rejected the application. I am satisfied that the rejection of the application is just and proper.
The law is well settled that delay cannot be excused as a matter of ‘judicial generosity’ in any special case. The law of limitation is not an equitable statute. It is a statue of repose. No substantial questions of law arise for consideration in this second appeal.
In the result, I find no merit in this appeal and accordingly it is dismissed at the stage of admission itself.
Sd/JUDGE
TKN
1 issue framed by the court
Whether the appellant is entitled to set aside the second appellate judgment dismissing the condonation of delay application filed under Section 5 of the Limitation Act?
2 provisions across 2 enactments
Mahadev
Mahantesh
Prakash
Jyoti Mulimani
S.A. Sondur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
