Appeal by a development authority against dismissal of its appeal filed 1899 days late in a suit decreeing permanent injunction protecting the plaintiff's possession of hotel premises. The High Court held sufficient cause for delay was not made out and that no substantial question of law arose, dismissing the second appeal.
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: 2024:KHC-D:18259 RSA No. 100341 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA RSA NO. 100341 OF 2020 (INJ)
BETWEEN:
THE COMMISSIONER HUBBALLI-DHARWAD URBAN DEVELOPMENT AUTHORITY, NAVANAGAR, HUBBALLI-580 025.
… APPELLANT
(BY MISS VINUTA M.KHANNUR, ADVOCATE APPEARED FOR SRI. MADANMOHAN M. KHANNUR, ADVOCATE)
AND:
Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.12.19
16:01:59
+0530
… RESPONDENTS THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.01.2020 PASSED IN R.A.NO.179/2017 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.07.2008 PASSED IN O.S. NO.383/2003 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN.) AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS, DHARWAD, DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
NC: 2024:KHC-D:18259 RSA No. 100341 of 2020
ORAL JUDGMENT
preferred appeal before the First Appellate Court along with IA No.1 under Section 5 of the Limitation Act, 1963 (hereinafter referred to as “the Act” for short) seeking to condone the delay of 1899 days in preferring the appeal, the application was objected by the respondent/plaintiff. The First Appellate Court while appreciating the entire material on record arrived at a conclusion that there is no sufficient ground made out by the appellant to condone the inordinate delay of 1899 days in preferring the appeal.
prescribed, it will be barred by limitation, it means that the suit brought before the Court after the expiry of the time within which a legal proceedings to be initiated will be restricted.
Acquisition, Anantnag and Other Vs. Katiji and
Others1 has held in advocating the liberal approach in condoning the delay for sufficient cause held that ordinarily a litigant does not stand to benefit by lodging an appeal late: it is not necessary to explain every days delay
in filing the appeal: and since some time refusal to condone the delay may result in throwing out the meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon the technical consideration and if the delay is not deliberate, it not be condoned. Notwithstanding the above, howsoever liberal approach is adopted in condoning the delay, existence of “sufficient cause” for not filing the appeal in time is a condition precedent for exercising the discretionary power to condone the delay.
approach ” and cause for the advancement of “ substantial
1 (1987) 2 SCC 107
justice ” cannot be employed to defeat the law of limitation so as to allow the stale matters or as a matter of fact dead matters to be revived and reopened by taking aid of Section 5 the Act. The Apex Court in the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields ltd .,2 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the Court. The Court, despite establishment of “sufficient cause” for various reasons may refuse to
condone the delay depending upon the bonafide of the party.
2 AIR 1962 SC 361
3 (2011) 4 SCC 363
delay, the Apex Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. The High Court should have exercised the discretion in a systematic and in informed manner. The liberal approach in considering the sufficiency of the cause for delay should not allowed to over ride the substantial law of limitation . The Court further observed that the concepts such as “liberal approach” “justice oriented approach” and “substantial justice” cannot be employed to jettison the substantial law of limitation . The Apex Court in the later judgment of Basawaraj and Anr. vs. Special Land Acquisition Officer4 (Basawaraj) has observed that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. “Sufficient cause”, as occurring in Section 5 the Act, cannot be liberally interpreted if negligence, inaction or lack of bonafide is writ large. It has also observed even though limitation
4 (2013) 14 SCC 81
may harshly affect the rights of the parties but it has to be applied with all its rigour as prescribed under the statute and the Courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds and at paragraph No.12 and 15 has held as under:
“12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court
could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”
case of Pathapati Subba Reddy (Died) by L.Rs. and Ors. v. The Special Deputy Collector (LA)5 has given a consideration to the provisions of law as aforesaid and has held at paragraph No.26 as under:
“ 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
5 2024 SCC Online SC 513
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”
“5. What we have here is a pure civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. In the present case, this delay has not been explained to the satisfaction of the court. The only reason assigned by the appellant for the delay of 254 days in filing the First Appeal was that he was not having sufficient funds to pay the court fee! This was not
6 2023 live law (SC) 69
found to be a sufficient reason for the condonation of delay as the appellant was an affluent businessman and a hotelier. In any case, even it is presumed for the sake of argument that the appellant was short of funds, at the relevant point of time and was not able to pay court fee, nothing barred him from filing the appeal as there is provision under the law for filing a defective appeal, i.e., an appeal which is deficient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Section 149 of Civil Procedure Code, 1908 which reads as under :-
"Section 149: Power to make up deficiency of Court Fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee, and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
It also needs to be emphasized that this Court as well as various High Courts, have held that Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the incorporation of Section 149 in CPC would explain this aspect.”
Courts to condone the delay is “sufficient cause”, the First Appellate Court dismissed the appeal on the ground of
delay, however, while dismissing the appeal granted liberty to the appellant to proceed against respondent No.1 for recovery of possession of the suit property in accordance with law. The perusal of the judgment of the First Appellate Court does not warrant any interference under Section 100 CPC and no substantial question of law arises for consideration and accordingly the Regular Second Appeal is dismissed as devoid of merits.
SD/-
(JUSTICE K.S.HEMALEKHA)
AT CT:PA LIST NO.: 1 SL NO.: 40
2 issues framed by the court
Whether the First Appellate Court rightly refused to condone an inordinate delay of 1899 days in filing the appeal under Section 5 of the Limitation Act.
Whether the Regular Second Appeal against concurrent findings in a suit for permanent injunction raises any substantial question of law.
Colour shows how this judgement treated each authority
Collector, Land Acquisition, Anantnag and Others Vs. Katiji and OthersRelied on¶6
(1987) 2 SCC 107 · Who else cites this
Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd.Relied on
AIR 1962 SC 361 · Who else cites this
Lanka Venkateswarlu (Dead) By LRs Vs. State of Andhra Pradesh and OthersRelied on¶8
(2011) 4 SCC 363 · Who else cites this
Basawaraj and Anr. vs. Special Land Acquisition OfficerRelied on¶8
(2013) 14 SCC 81 · Who else cites this
Pathapati Subba Reddy (Died) by L.Rs. and Ors. v. The Special Deputy Collector (LA)Relied on¶9
2024 SCC Online SC 513 · Who else cites this
Ajay Dabra Vs. Pyare Ram and Ors.Relied on¶10
2023 live law (SC) 69
3 provisions across 2 enactments
The Commissioner, Hubballi-Dharwad Urban Development Authority
Jairam S/o. Kantayya Shetty
The Hubballi-Dharwad Municipal Corporation
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
