Dismissed

Sri S B Anilkumar v. Sri Maggada Mane Devaraju

Karnataka HC11 Jul 2023RSA/1340/2017

Case brief

AI extract

What is this about?

This Regular Second Appeal was dismissed due to the refusal to condone a 203-day delay. The Court found the appellant's affidavit regarding illness insufficient without supporting medical documents, thus exercising discretion to reject the application for extension of time.

What did the court decide?

I.A.No.1/2017 for condonation of delay is rejected; Regular Second Appeal is dismissed; all pending interlocutory applications are disposed of.

Sri S B Anilkumar Vs Sri Maggada Mane… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:23872 RSA No. 1340 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^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. 1340 OF 2017 (DEC/INJ)

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BETWEEN:

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SRI S.B.ANILKUMAR S/O S.D.BRAHMARAJU, AGED ABOUT 55 YEARS, R/AT MYSORE ROAD, SHRAVANABELAGOLA VILLAGE & HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 570 056.

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…APPELLANT

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(BY SRI. K.R.LINGARAJU., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SRI MAGGADA MANE DEVARAJU S/O KUCHELASHETTY, AGED ABOUT 50 YEARS, R/AT FILTERHOUSE CROSS, HOLENARSIPURA ROAD, OPPOSITE SEEDS CORPORATION, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 570 057.

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…RESPONDENT

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

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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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NC: 2023:KHC:23872 RSA No. 1340 of 2017

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ORDER

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Sri.K.R.Lingaraju., learned counsel for the appellant and Sri.Santosh.B.M., learned counsel for respondent have 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.1/2017 for condonation of a delay of 203 days in filing the appeal.

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Sri.K.R.Lingaraju., learned counsel for the appellant submits that there is a delay of 203 days in filing the second appeal. Sri.S.B.Anil Kumar - 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 203 days in filing the appeal may be condoned.

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Sri.Santosh.B.M., learned counsel for respondent submits that he has filed statement of objections to I.A.No.1/2017, the same may be taken note of and appropriate order may be passed.

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3 - NC: 2023:KHC:23872 RSA No. 1340 of 2017

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Heard, the contentions urged on behalf of the respective parties on condonation of delay and perused the appeal papers, application, affidavit and also the statement of objections filed by the respondent 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 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

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4 - NC: 2023:KHC:23872 RSA No. 1340 of 2017

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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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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

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5 - NC: 2023:KHC:23872 RSA No. 1340 of 2017

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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 declaration and permanent injunction. The suit is filed on the file of Principal Civil Judge and JMFC, Channarayapatna in O.S.No.99/2009. The Trial Court vide Judgment and Decree dated:28.01.2015 dismissed the suit. Aggrieved by the Judgment & Decree of the Trial Court, the plaintiff preferred an appeal in R.A.No.20/2015 on the file of Senior Civil Judge, Channarayapatna. On appeal, the First Appellate Court vide Judgment & Decree dated:02.08.2016 confirmed the Judgment & Decree of the Trial Court and dismissed the appeal. Aggrieved by the Judgment and Decree of the First Appellate Court, the plaintiff has preferred this Regular Second Appeal under Section 100 of CPC on 27.06.2017. There is a delay of 203 days in filing the appeal.

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I have perused the application I.A.No.1/2017 and also the affidavit. Sri.S.B.Anil Kumar - the appellant has sworn to the affidavit. In the affidavit, it is stated that he was unwell

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and he was unable to contact the counsel before the First Appellate Court and was taken treatment continuously for the chicken guinea and severe joint pain. Hence, there is a delay in filing the appeal and it took time for him to secure documents and thereafter made preparations to file an appeal. I am unable to accept the said contention for the simple reason that, except for stating that the appellant was suffering from chicken-guinea and sever joint pain, he has not produced any medical documents to substantiate the same. Learned counsel for respondent is justified in objecting 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 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 decline to condone the delay and admit the second appeal. Accordingly, I.A.No.1/2017 is rejected.

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Resultantly, the Regular Second Appeal is

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dismissed .

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NC: 2023:KHC:23872 RSA No. 1340 of 2017

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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.: 2 Sl No.: 10

Sri S B Anilkumar v. Sri Maggada Mane Devaraju

Case brief

What is this about?

What did the court decide?

Sri S B Anilkumar v. Sri Maggada Mane Devaraju

Case brief

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What the court decided

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