Dismissed

Sri Durga Bovi v. Sri Bheema Bovi

Karnataka HC14 Jul 2023RSA/1173/2020

Case brief

AI extract

What is this about?

The High Court dismissed a regular second appeal under CPC Section 100 due to an uncondonable delay of 5115 days. The court held that the appellant's affidavit citing drought and lack of legal knowledge did not constitute sufficient cause under Section 5 of the Limitation Act.

What did the court decide?

IA No. 1/2020 for condonation of delay dismissed; Regular Second Appeal dismissed; pending interlocutory applications disposed of.

Sri Durga Bovi Vs Sri Bheema Bovi — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:24548 RSA No. 1173 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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REGULAR SECOND APPEAL NO.1173 OF 2020 (INJ)

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BETWEEN:

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SRI DURGA BOVI S/O EMMIGANUR BHIMA BOVI, AGED ABOUT 62 YEARS, R/AT ANNEHAL VILLAGE, CHITRADURGA TALUK AND DISTRICT - 577 501.

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…APPELLANT

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(BY SRI. SIDDAPPA B.M., ADVOCATE)

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AND:

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SRI. BHEEMA BOVI S/O MARA BOVI, AGED ABOUT 92 YEARS, R/AT ANNEHAL VILLAGE, CHITRADURGA TALUK AND DISTRICT - 577 501.

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.

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THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.B.M.Siddappa., learned counsel for appellant has

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appeared in person.

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2 - NC: 2023:KHC:24548 RSA No. 1173 of 2020

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The captioned appeal is listed today for admission along with I.A.No.1/2020 for condonation of a delay of 5115 days in filing the appeal.

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Sri.B.M.siddappa., learned counsel for the appellant submits that there is a delay of 5115 days in filing the Second Appeal. Sri.Durga Bovi - the appellant has sworn to an affidavit explaining the sufficiency of reason to condone the delay. Learned counsel submits that the delay caused in filing the appeal is neither wanton nor with any malafide intention. If the delay is not condoned, the appellant will be put to hardship. Hence, he submits that the delay of 5115 days in filing the appeal may be condoned.

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Heard, the contentions urged on behalf of the appellant about the condonation of delay and perused the appeal papers with utmost care.

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Let us quickly glance through the law of limitation.

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The principle enunciated under Section 5 of the Limitation Act is that a Court is vested with judicial discretion to admit an appeal, or an application filed after the expiry of the period of limitation on sufficient cause being shown for the delay.

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3 - NC: 2023:KHC:24548 RSA No. 1173 of 2020

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It must be remembered that the Court has full discretion to refuse an extension of time, but this discretion, like other judicial discretions, must be exercised with vigilance and circumspection according to justice, common sense, and sound judgment. It must not be exercised in an arbitrary, vague, and fanciful manner. Delay cannot be condoned as a matter of “judicial generosity”. Condonation of delay cannot be claimed as of right.

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Having regard to the words “may be admitted “in Section 5, the Court has discretion, even where sufficient cause is shown, in not admitting an appeal filed after time, on the ground that the extension of time under that Section is a matter of concession or indulgence to the appellant/petitioner who has come late and cannot be claimed as of right.

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The proof of "sufficient cause" is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court. What counts is not the length of the delay but the sufficiency of the cause.

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The Court should not come to the aid of a party where there has been an unwarrantable delay in seeking the statutory

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4 - NC: 2023:KHC:24548 RSA No. 1173 of 2020

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remedy. Any remedy must be sought with reasonable promptitude having regard to the circumstances.

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No doubt there are authorities to say that the words "sufficient cause" should receive a liberal construction to advance substantial justice. What is sufficient cause cannot be described with certainty because facts on which questions may arise may not be identical. What may be sufficient cause in one case may be otherwise in another. Hence the whole thing should be decided with reference to the circumstances of each case. Each case must be decided on its own facts. But it must not be lost of sight that the petitioner/ appellant will have to prove that he was diligent. Further, he will have to explain dayto-day delay from the last day of limitation.

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Reverting to the facts of the case, the suit giving rise to this appeal was brought by the plaintiff seeking the relief of a permanent injunction. The suit is filed on the file of Addl. Civil Judge (Jr.Dn), Chitradurga in O.S.No.185/1998. The Trial Court vide Judgment and Decree dated 04.11.1999 decreed the suit. Aggrieved by the Judgment & Decree of the Trial Court, the defendant preferred an appeal in R.A.No.300/2004 on the

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5 - NC: 2023:KHC:24548 RSA No. 1173 of 2020

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file of Prl.District Judge, Chitradurga. On appeal, the First Appellate Court vide Judgment & Decree dated:23.12.2005 confirmed the Judgment & Decree of the Trial Court and dismissed the appeal. Aggrieved by the Judgment and Decree of the First Appellate Court, the defendant preferred this appeal under Section 100 of CPC on 10.06.2020. There is a delay of 5115 days in filing the appeal.

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I have perused the application I.A.No.1/2020 and also the affidavit. Sri.Durga Bovi - the appellant has sworn to an affidavit. In the affidavit he has stated that he is a rustic villager and he is not aware of the legal proceedings. Due to drought in his area, he left the Village and went to Davanagere to eke out his livelihood. It is only in the year 2018 he came to know that the respondent tried to interfere with his possession and thereafter, he made an attempt to approach his advocate and gave necessary instruction to file an appeal. Therefore, there is a delay in filing the appeal and the same may be condoned.

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As already noted above, the Court has full discretion to refuse an extension of time. The reasons accorded in the

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6 - NC: 2023:KHC:24548 RSA No. 1173 of 2020

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affidavit and the submission made on behalf of the appellant regarding delay in filing the appeal are not satisfactory and hence this Court exercises the discretionary power and refuses an extension of time. I may venture to say that there is a delay of 14 years in preferring an appeal. Hence, I decline to condone the delay and admit the second appeal. Accordingly, I.A.No.1/2020 is dismissed.

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Resultantly, the Regular Second Appeal is

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dismissed .

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In view of the dismissal of Regular Second Appeal, all pending interlocutory applications are disposed of as does not survive for consideration.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 60

Sri Durga Bovi v. Sri Bheema Bovi

Case brief

What is this about?

What did the court decide?

Sri Durga Bovi v. Sri Bheema Bovi

Case brief

What is this about?

What did the court decide?

What the court decided

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