Dismissed

Shivanna v. Bhagyamma

Karnataka HC24 Jan 2023RSA/354/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a Regular Second Appeal and an accompanying application for condonation of delay. The Court refused to condone a delay of over 1279 days, finding the appellant's reasons of financial crisis, illiteracy, and pandemic insufficient to explain the inordinate lapse since the judgment was pronounced in 2016.

What did the court decide?

Application for condonation of delay under Section 5 of Limitation Act is dismissed; consequently, the Regular Second Appeal is dismissed.

Shivanna Vs Bhagyamma — Specific Performance | Karnataka HC (2023)

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RSA No. 354 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 354 OF 2022 (SP)

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BETWEEN:

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SHIVANNA S/O. LATE GIDDEGOWDA AGED ABOUT 46 YEARS, KOKKANAGATTA VILLAGE, KASABA HOBLI, HASSAN TALUK AND DISTRICT-573 201.

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…APPELLANT

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(BY SRI YESHU MISHRA, ADVOCATE)

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AND:

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BHAGYAMMA

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W/O. LATE MALLESHA AGED ABOUT 44 YEARS, HYARANE VILLAGE, KATTAYA HOBLI, HASSAN TALUK AND DISTRICT-573 201.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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RANGAMMA

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W/O. LATE GIDDEGOWDA AGED ABOUT 59 YEARS,

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R2 IS DEAD HENCE LRs OF R2 IS APPELLANT AND R3

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(VIDE ORDER DATED 16.06.2022)

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BHEEMEGOWDA S/O. LATE GIDDEGOWDA AGED ABOUT 42 YEARS,

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RSA No. 354 of 2022

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RESPONDENT NOS.2 AND 3 ARE R/AT KOKKANAGHATTA VILLAGE, KASAB AHOBLI,

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HASSAN TALUK AND DISTRICT-573 201.

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…RESPONDENTS

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(NOTICE TO R1 IS HELD SUFFICIENT, VIDE ORDER DATED 16.06.2022; R3 IS SERVED;

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APPELLANT AND R3 ARE TREATED AS LR OF DECEASED R2)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.06.2016 PASSED IN R.A.NO.59/2010 ON THE FILE OF THE 5^TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.03.2010 PASSED IN OS.NO.203/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) HASSAN.

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

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JUDGMENT

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This matter is listed for admission along with I.A.No.1/2022 for condonation of delay of 1279 days in filing the appeal. In support of the application, an affidavit is sworn to that though the impugned order was passed by the First Appellate Court in the year 2016, due to his financial crisis, he was unable to arrange the funds to prefer the appeal and also after that, due to Pandemic and other reasons, even he has struggled for eking his livelihood. Under such situation and circumstances, he was unable to contact his advocate and in

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RSA No. 354 of 2022

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December, 2021, he received notice from the Executing Court in Execution No.267/2017 and then only, he came to know that Executing Court has proceeded to pass an order to execute the sale deed. Thereafter, he immediately rushed to Bengaluru after collecting necessary papers and engaged the Advocate to prefer an appeal.

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It is further sworn to in the affidavit that, after Covid and during Covid, it was very miserable for him to lead his livelihood due to illiteracy and lack of knowledge and due to financial crisis, it is was very difficult for him to arrange funds under Covid-19 situation and later with the help of relatives, he arranged the money and rushed to Bengaluru to prefer an appeal after receipt of notice from the Executing Court. Hence, there is a delay in filing the appeal. It is further sworn to that the delay in preferring the appeal is for bonafide reasons and if the delay is not condoned, injustice will cause to him and prays to condone the delay.

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The counsel, in support of the affidavit filed

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accompanying the application would vehemently contend that the appellant is an illiterate auto driver and hence, he could not

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RSA No. 354 of 2022

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file the appeal in time and the delay is not intentional and only

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for the bonafide reasons, he could not prefer the appeal in time and hence, the delay may be condoned.

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The counsel, in support of his argument, relied upon the copy of the driving license of the appellant to show that he is an auto driver. Apart from that, the counsel also relied upon the judgment of the Apex Court in Suo Motu Writ Petition (C) No.3 OF 2020 , wherein it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

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The counsel also relied upon the judgment of the Apex Court in MANOHARAN VS. SIVARAJAN AND OTHERS reported in (2014) 4 SCC 163 and brought to notice of this Court Para No.8, wherein the Apex Court held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to the parties by disposing the case on merit and also brought to notice of this Court the fact that liberal approach should be

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RSA No. 354 of 2022

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adopted while condoning the delay and also the guidelines issued in the appeal that ‘every day’s delay must be explained’ does not mean that a pedantic approach should be made.

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The counsel also relied upon the judgment of the Apex Court in N. BALAKRISHNAN VS. M. KRISHNAMURTHY reported in (1998) 7 SCC 123 , wherein also the Apex Court observed with regard to condonation of delay and exercising the discretion to condone the delay when sufficient cause shown should be construed liberally and brought to notice of this Court Para No.12, wherein the Apex Court observed that a Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his case. There is no presumption that delay in approaching the Court is always deliberate. It is also held that ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction, so as to advance substantial justice.

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The counsel relying upon these judgments would vehemently contend that this Court has to consider the matter in a lenient way and advance substantial justice and should not

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RSA No. 354 of 2022

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dismissed the appeal on technicalities. Hence, prayed this Court to condone the delay.

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Having heard the learned counsel for the appellant

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and also on perusal of the material available on record, the plaintiff has filed the suit for the relief of specific performance to enforce the sale agreement dated 03.05.2006, wherein an advance amount of Rs.50,000/- was paid out of sale consideration of Rs.2,50,000/- and had also received an additional amount of Rs.12,000/- extending the period for execution of the sale agreement. When the defendants did not come forward to execute the sale deed, the plaintiff has given the notice and reply was also given in terms of Ex.P6 and thereafter, the suit was filed.

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The Trial Court, after considering both oral and documentary evidence placed on record, decreed the suit and directed the defendants to execute the sale deed in terms of the sale agreement dated 03.05.2006 by receiving balance sale consideration. The same is challenged by the appellant herein by filing an appeal in R.A.No.59/2010. The First Appellate Court also considered the material on record, whether the Trial Court

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RSA No. 354 of 2022

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is erroneous in passing the judgment arbitrarily and it calls for interference and whether grounds are made out to reverse the findings of the Trial Court. The First Appellate Court, on reappreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal is filed.

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It has to be noted that the suit was filed in the year 2006 and the sale agreement is also of the year 2006 and suit was decreed on 09.03.2010 and appeal was filed in the year 2010. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, vide judgment dated 15.06.2016, dismissed the appeal. This second appeal is filed almost after lapse of 6 years and the reason assigned in the affidavit accompanying the application for condonation of delay is that due to his financial difficulties and Covid-19 Pandemic, he could not mobilize the funds and he was facing difficulty to eke out his livelihood.

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Having considered the affidavit, in Para No.4, it is

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stated that though the impugned order was passed by the First Appellate Court in the year 2016, due to his financial crisis, he

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RSA No. 354 of 2022

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was unable to arrange the funds and hence, there is a delay of 1279 days in filing the appeal. The reason given for the delay is that he was unable to arrange funds and prefer the appeal due to Covid-19 Pandemic and in between 2016 to 2021, no explanation whatsoever is given for the delay and the learned counsel for the appellant has only produced the document of license to show that he is an auto driver and an illiterate. But, while filing the appeal, when there is an inordinate delay, the appellant has to show sufficient cause for condonation of delay.

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No doubt, the Apex Court in the judgment referred (supra) by the learned counsel for the appellant held that substantial justice has to be done and should not dismiss the appeal on technicalities, but the fact is that, in the affidavit, except stating that the appellant was having financial difficulty and was not able to arrange the funds and he came to know about the dismissal of the appeal in the month of December, 2021 when he received notice from the Executing Court, nothing is stated with regard to the delay from 2016 to 2021 as to why he did not approach the advocate and enquire regarding his case and delay has not been properly explained by the learned counsel for the appellant. No doubt, in the judgment

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RSA No. 354 of 2022

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relied upon by the learned counsel for the appellant (supra) it is stated that the Court has to take provide substantial justice to the parties, at the same time, it is the duty of the appellant to approach the Court within the time stipulated and even if he has not approached the Court in time, there should not be any inordinate delay.

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This Court would like to rely upon the judgment of the Apex Court in MAJJI SANNEMMA ALIAS SANYASIRAO VS. REDDY SRIDEVI AND ORS. reported in AIR 2022 SC 332 , wherein the delay condoned by the High Court was challenged before the Apex Court and the Apex Court, in the said judgment held that, sufficient cause should be shown that too, for condonation of huge delay of 1011 days in preferring the second appeal. The grounds urged in the appeal is that she was sick and advised to take bed rest and no explanation for delay from end of her bed rest till filing of the appeal and hence, the Apex Court held that the order condoning delay is unsustainable.

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The Apex Court also, in Para No.8 of the judgment held that, no explanation much less a sufficient or a satisfactory

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RSA No. 354 of 2022

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explanation had been offered by respondent Nos.1 and 2 herein-appellants before the High Court for condonation of huge delay of 1011 days in preferring the second appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Hence, set aside the order condoning the delay in the appeal.

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This Court also would like to rely upon the judgment of this Court in LOKAPPA S/O. DHAKAPPA

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KASHENAVAR VS. SMT. SHEKAVVA W/O. TIRKAPPA MEGHANI AND ANR. reported in AIR 2019 KARNATAKA 119 , wherein there was a delay of 696 days in filing the appeal, this Court held that there should be sufficient cause for condonation of delay and the plea of the appellant was that, he was not able to move out of his house as he was suffering from hypertension and arthritis not found to be true and bonafide and appellant would have filed appeal in time, if he had really suffered by judgment and decree and in the absence of sufficient cause, held that delay is not liable to be condoned.

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RSA No. 354 of 2022

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This Court also would like to rely upon the judgment of this Court in R.F.A.NO.100126 OF 2021 dated 24.08.2022, wherein in Para No.11 of the judgment, it is observed that, even though this Court provided an opportunity to file a better affidavit and no doubt, better affidavit is also filed and on perusal of the same, nothing is mentioned in the better affidavit, except reiterating the grounds of having difficulty to arrange for Court fee and there is no willful negligence on his part, the delay has not been explained properly and sufficient cause has not been shown to condone the delay and rejected the application seeking condonation of delay and consequently, dismissed the appeal.

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This Court also would like to rely upon the judgment of this Court in R.S.A.100584 OF 2022 dated 01.09.2022 , wherein there was a delay of 441 days in filing the appeal, this Court in Para No.9 of the judgment observed that the delay of one year from the judgment and decree in between March-2019 to March-2020 has not been explained and sufficient cause has not been shown and pandemic of Covid-19 affected only after March-2020 and hence, the same cannot be a ground and apart from that the Head Office has not

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RSA No. 354 of 2022

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properly replied to the intimation given by the appellants is also not a sufficient ground to condone the delay, dismissed the appeal.

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This Court would also like to rely upon the judgment of this Court in SMT. PARVATHAMMA AND OTHERS VS. SMT. JAYAMMA AND ANOTHER reported in 2018 (4) AKR 690 , wherein there was a delay of 955 days in filing the appeal, it was the plea of defendants that their advocate did not inform them regarding disposal of suit for partition and separate possession and it come to their knowledge only after proclamation notice was issued, this Court held that parties required to be diligent in prosecution of proceedings and duty is cast on parties to enquire with their legal counsel regarding progress of proceedings and not enquiring regarding stage of litigation reflects negligent attitude and no sufficient cause shown for condoning delay of 955 days in filing the appeal and held that delay cannot be condoned.

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No doubt, in the judgment relied upon by the learned counsel for the appellant, the delay was condoned for the period from 2020 to 2022, the same is not the situation in

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RSA No. 354 of 2022

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this case and in the instant case, the delay is from 2016 to

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The Apex Court also, while condoning the delay in Suo Motu Writ Petition (C) No.3 of 2020 , taken note of Covid Pandemic in Para No.5 (III) and observed that, in cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022 and hence, condoned the delay. However, the factual aspects of the case on hand is different from the judgments relied upon by the learned counsel for the appellant and the same are not applicable to the facts of the case on hand and the inordinate delay has not been properly explained by the appellant, except stating that he was an illiterate auto driver and was not having funds to prefer the appeal and the said reason cannot be accepted for an inordinate delay of 1279 days, that too when the finding was given by the Trial Court as well as the First Appellate Court with regard to the agreement of sale and nonexecution of the sale deed in the year 2016 itself and the matter is pending from 2006 to 2023 for enforcing the sale agreement of the year 2006. Hence, I do not find any ground

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RSA No. 354 of 2022

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to condone the inordinate delay of 1279 days in filing the

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appeal.

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Accordingly, I.A.No.1/2022 for condonation of delay is

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dismissed. Consequently, the appeal is also dismissed.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 31

Shivanna v. Bhagyamma

Case brief

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Shivanna v. Bhagyamma

Case brief

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