Dismissed

Sri T S Siddalingaiah Since Deceased Represented by His Lr Smt T H Lakshmidevamma v. Sri T K Manjunath

Karnataka HC6 Jul 2023RSA/1320/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed under Section 100 CPC after refusing to condone a delay of 1807 days. The court held the explanation for delay regarding counsel's advice was unsatisfactory and denied the extension.

What did the court decide?

I.A.No.1/2022 for condonation of delay rejected; Regular Second Appeal dismissed.

Sri T S Siddalingaiah Since Deceased Represented by… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC:23271 RSA No. 1320 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^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.1320 OF 2022 (SP)

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BETWEEN:

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SRI.T.S.SIDDALINGAIAH, SINCE DECEASED REPRESENTED BY HIS LRS

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SMT.T.H.LAKSHMIDEVAMMA AGED ABOUT 71 YEARS, W/O LATE T.SIDDALINGAIAH,

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SRI T.S.SIDDARAJU S/O LATE T S.SIDDALINGAIAH, AGED ABOUT 48 YEARS,

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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BOTH 1 & 2 ARE TOGETHER R/A NO.G-842, 3^RD MAIN, 9^TH CROSS, HAL CENTER TOWN, MARUTHAHALLI POST, BENGALURU - 560 037.

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SMT. T.S.SHIVAMMA D/O LATE T.S.SIDDALINGAIAH, AGED ABOUT 49 YEARS, C/O NAGARAJU (DRAMA MASTER), NO.493/1, O.T. ROAD NEAR VIDYANIKETHANA SCHOOL, VISHWANEEDAM POST, SUNKADAKATTE, BENGALURU - 560 091.

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NC: 2023:KHC:23271 RSA No. 1320 of 2022

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SMT. LALITHA D/O LATE T.S.SIDDALINGAIAH, AGED ABOUT 42 YEARS, R/O NO.1402, 9^TH MAIN, 9^TH CROSS, SHIVAJINAGARA, BENGALURU - 560 001.

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…APPELLANTS

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(BY SRI. CHANNABASAPPA.S.N., ADVOCATE)

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AND:

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SRI T.K.MANJUNATH S/O T.S.KEMPAIAH, AGED ABOUT 56 YEARS, R/O TAVAREKERE VILLAGE, TAVAREKERE HOBLI, BENGALURU SOUTH TALUK - 560 037.

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…RESPONDENT

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

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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.Channabasappa.S.N., learned counsel for appellants

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has appeared in person.

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The captioned appeal is listed today for admission along with an interlocutory application i.e., I.A.No.1/2022 for condonation of a delay of 1807 days in filing the appeal.

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3 - NC: 2023:KHC:23271 RSA No. 1320 of 2022

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Sri.Channabasappa.S.N., learned counsel for the appellants submits that there is a delay of 1807 days in filing the second appeal. Sri.T.S.Siddaraju - the second 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 appellants will be put to hardship. Hence, he submits that the delay of 1807 days in filing the appeal may be condoned.

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Heard, the contentions urged on behalf of the appellants on condonation of delay and perused the appeal papers, application and also the affidavit filed in support of I.A.No.1/2022 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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It must be remembered that the Court has full discretion to refuse an extension of time, but this discretion, like other

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4 - NC: 2023:KHC:23271 RSA No. 1320 of 2022

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

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NC: 2023:KHC:23271 RSA No. 1320 of 2022

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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 specific performance. The suit is filed on the file of Principal Civil Judge (Sr.Dn), Ramanagara in O.S.No.269/2006. The Trial Court vide Judgment and Decree dated:05.07.2008 decreed the suit. Aggrieved by the Judgment & Decree of the Trial Court, the legal representatives of deceased original defendant preferred an appeal in R.A.No.63/2008 on the file of Principal District and Sessions Judge, Ramanagara. On appeal, the First Appellate Court vide Judgment & Decree dated:21.07.2015

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6 - NC: 2023:KHC:23271 RSA No. 1320 of 2022

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confirmed the Judgment & Decree of the Trial Court and dismissed the appeal. Aggrieved by the Judgment and Decree of the First Appellate Court, the appellants have preferred this Regular Second Appeal under Section 100 of CPC on 14.09.2022. There is a delay of 1807 days in filing the appeal.

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I have perused the application I.A.No.1/2022 and also the affidavit. Sri.T.S.Siddaraju - the second appellant has sworn to the affidavit. In the affidavit, it is stated that the appellants were not aware of the sale agreement executed by their late father Siddalingaiah in favor of respondent. It is also stated that the decree was granted in favor of appellants by allotting 1/4^th share each in the schedule property. An attempt was made by the appellants to implead themselves in the Original Suit filed by the respondent herein and the same was denied by Trial Court. The legal heirs of deceased Siddalingaiah preferred an Appeal before the First Appellate Court.

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It is also stated that they were given an understanding by the counsel on record before the Trial Court that they cannot challenge the dismissal of the suit until and unless the property in question is transferred to the name of the respondent. It was

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NC: 2023:KHC:23271 RSA No. 1320 of 2022

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also informed that they can only prefer an appeal only after the sale deed is executed in favor of the respondent. Blindly believing the said aspect, the appeal was not preferred.

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A careful perusal of the affidavit reveals that the appellants were prevented from filing an appeal in time by their counsel who represented them before the Trial Court on the pretext that unless and until a sale deed is executed in favour of the respondent, they cannot prefer an appeal. It is hard to believe the said explanation to condone the delay.

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As already noted above, the Court has full discretion to refuse an extension of time. The reasons accorded in the affidavit and the submission made on behalf of the appellants regarding delay in filing the appeal are not satisfactory and hence this Court exercises the discretionary power and refuses an extension of time. I decline to condone the delay and admit the second appeal. Accordingly, I.A.No.1/2022 is rejected.

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Resultantly, the Regular Second Appeal is

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dismissed .

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NC: 2023:KHC:23271 RSA No. 1320 of 2022

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In view of the dismissal of Regular Second Appeal,

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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.: 66

Sri T S Siddalingaiah Since Deceased Represented by His Lr Smt T H Lakshmidevamma v. Sri T K Manjunath

Case brief

What is this about?

What did the court decide?

Sri T S Siddalingaiah Since Deceased Represented by His Lr Smt T H Lakshmidevamma v. Sri T K Manjunath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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