The High Court of Karnataka refused to condone a delay of 519 days in filing a regular second appeal, holding that the Government stood on the same footing as a private litigant and the reasons provided for the delay were unsatisfactory.
I.A.No.1/2017 for condonation of delay is rejected; Regular Second Appeal is dismissed.
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.
NC: 2023:KHC:24122 RSA No. 455 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.455 OF 2016 (DEC/INJ)
BETWEEN:
Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA
(BY SRI. H.K.BASAVARAJ., AGA)
AND:
SRI M.M.CHANDRAPPA AGED ABOUT 47 YEARS, S/O LATE M.T.MANJAPPA, R/AT GAGENAHALLI VILLAGE, BILIKERE HOBLI, HUNSUR TALUK, MYSURU DISTRICT - 571 103.
…RESPONDENT
(BY SRI. B.S.NAGARAJ., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
NC: 2023:KHC:24122 RSA No. 455 of 2016
THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri.H.K.Basavaraj., learned AGA for appellants and Sri.B.S.Nagaraj., learned counsel for respondent have appeared in person.
interlocutory application i.e., I.A.No.1/2017 for condonation of a delay of 519 days in filing the appeal.
I.A.No.1/2017, the same may be taken note of and appropriate order may be passed.
6. Let us quickly glance through the law of limitation.
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.
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.
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.
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.
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.
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
NC: 2023:KHC:24122 RSA No. 455 of 2016
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.
NC: 2023:KHC:24122 RSA No. 455 of 2016
NC: 2023:KHC:24122 RSA No. 455 of 2016
It is also stated that on 27.07.2015, the Deputy Conservator of Forests, Wildlife Division, Mysore wrote a letter to the Additional Principal Secretary, Forest & Ecology, Bengaluru for permission to file an appeal against the Judgement and Decree passed by the First Appellate Court. That on 27.07.2015, the Chief Conservator of Forests, Law Department, Bengaluru wrote a letter to the Principal Chief Conservator of Forests giving further clarifications and sought for further information in the case. That on 24.08.2015, the Additional Prl.Secretary, Forest & Environment Department, wrote a letter to Principal Secretary, Forest & Ecology Department, Bengaluru giving permission to file an appeal before the High Court. That on 27.08.2015, the Deputy Secretary, Department of Forest & Environment gave permission to file an Appeal. Accordingly, a Government Order was passed and sent to the Forest Department, Mysore. The same was then forwarded with the entire papers to the office of the Advocate General at Bengaluru. The Appeal was drafted but, on account of non-receipt of a delay note, it was filed only on 11.03.2016. It is also stated that some files were misplaced
and further action was taken to comply with the office objections by filing this application.
I am unable to accept the reasons accorded in the affidavit. Except for saying that the file has moved from table to table, no satisfactory reasons are accorded for delay in filing the appeal. Furthermore, the Government has not bothered even to apply for certified copy of the Judgment & Decree immediately when the Appellate Court pronounced the same.
Suffice it to note that the First Appellate Court passed the Judgment & Decree on 11.07.2014. The Government made an application to obtain certified copy of the Judgment & Decree on 31.08.2015 i.e., after lapse of 01 year 01 month. I may venture to say that the Government is not, as such, entitled to any special consideration under Section 5 of the Limitation Act. In other words, there is no discrimination in the statute between the State and the subject. Time and again, Hon'ble Supreme Court has observed that in so far as condonation of delay is concerned, the Government stands in the same footing as a private litigant. Hence, no mercy can be shown to the appellant which is Government.
NC: 2023:KHC:24122 RSA No. 455 of 2016
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.1/2017 is rejected.
dismissed .
Sd/JUDGE
TKN List No.: 1 Sl No.: 20
2 issues framed by the court
Whether condonation of delay of 519 days in filing a regular second appeal is permissible under Section 5 of the Limitation Act.
Whether the Government is entitled to any special consideration over a private litigant regarding condonation of time limits.
The Chief Secretary, Government of Karnataka
M.M.Chandrappa
Jyoti Mulimani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
