Second appeal filed 869 days late against decree allowing specific performance of a sale agreement. The court found the appellants, who personally contested the suit, lacked bonafides in explaining the delay and rejected the condonation application, dismissing the appeal.
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NC: 2024:KHC:10994 RSA No. 2463 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 2463 OF 2018 (SP)
BETWEEN:
BOTH ARE R/AT BOMMANAYAKANAHALLI, KASABA HOBLI, HASSAN TALUK - 577201.
…APPELLANTS
(BY SRI.RANGASWAMY M. T., AND SRI.MOHAMED KHAN A., ADVOCATE FOR APPELLANTS)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
U. K. PRAKASH, AGED ABOUT 49 YEARS, S/O U.S.KRISHNA SWAMY, UCCHANGI VILLAGE, YESLUR HOBLI, SAKALESHAPURA TALUK, HASSAN DISTRICT - 577 201.
…RESPONDENT
(BY SMT.SUMANGALA A. SWAMY, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.04.2016 PASSED IN RA.NO.50/2012 ON THE FILE OF THE 5th ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 15.02.2012 PASSED IN O.S.NO.62/2005 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, HASSAN.
NC: 2024:KHC:10994 RSA No. 2463 of 2018
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
I.A.No.1/2018 is filed for condonation of delay of 869
days in filing the appeal. Application is supported by the affidavit.
Sri.Bettegowda was attending and pursuing the matter before the First Appellate Court on their behalf and then he died on 12.09.2018 due to kidney ailment and its only thereafter, they learnt about the disposal of the appeal in RA No.50/2012 by the judgment and decree dated
NC: 2024:KHC:10994 RSA No. 2463 of 2018
30.04.2016, as such he was not aware of the pendency of the proceedings. Except above nothing has been stated.
prosecuted personally by appellant No.1 and his mother and not by Sri.Bettegowda - defendant No.1.
counsel for the respondent that the Regular Appeal was disposed of on 30.04.2016 and defendant No.1 - Bettegowda is said to have passed away on 12.09.2018, that is after, two years five months from the date of disposal of the first appeal. The appellant who himself contested the matter, led evidence including production of
documents in the nature of certified copy of the order sheet and plaint in the suit in O.S.No.62/2005 for partition which was filed by him along with other sisters cannot be heard to say that he was not aware of disposal of the Regular Appeal for over 869 days. Further, even if the said submission to be countenanced, defendant No.1 - Bettegowda passed away as noted above after two years five months from the date of disposal of the appeal.
is imputable to a party. It is equally settled law that whether the explanation furnished would constitute sufficient cause or not will depend upon the facts of each case. The right that is accrued in favour of the opposite party due to inaction of the party required to take steps in time shall also be kept in mind. Viewed in the light of this settled principles of law the cause shown in the affidavit apart from not being satisfactory, it is also not credible and same does not evince the confidence in the reasons being assigned for not filing of the appeal in time. No sufficient cause is shown. Further, the right which has already accrued in favor of respondent No.1 in terms of the judgment and decree passed by the Trial Court cannot also be ignored.
juncture submits that suit for partition filed by the appellants is pending for consideration and they may be permitted to prosecute the same. Needless to state, not withstanding the dismissal of this appeal, the appellants
NC: 2024:KHC:10994 RSA No. 2463 of 2018
are entitled to pursue the remedy in the said suit and avail
such remedy therein as may permissible under law.
In that view, I.A.No.1/2018 for condonation of
delay of 869 days is rejected. Consequently, appeal is
also dismissed .
Sd/JUDGE
KAV List No.: 2 Sl No.: 11
1 issue framed by the court
Whether the delay of 869 days in filing the second appeal should be condoned under Section 5 of the Limitation Act?
2 provisions across 2 enactments
Swamy
Bhagya
U. K. Prakash
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
