Jayamma Vs Bhagyamma

AGED ABOUT 62 YEARS CLAIMED TO BE THE WIFE OF LATE LAKSHMISHAPPA R/AT KAMMASANDRA VILLAGE SULIBELE HOBLI, HOSAKOTE TALUK BENGALURU RURAL DISTRICT-562 110

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MADHUMATHI AGED ABOUT 42 YEARS CLAIMED TO BE THE DAUGHTER OF LATE LAKSHMISHAPPA W/O. ELISH KUMAR R/AT 1, NEAR OM SHAKTHI TEMPLE HOSAPALYA MAIN ROAD, HSR LAYOUT BENGALURU-560 068

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L. MANOHARA AGED ABOUT 38 YEARS CLAIMED TO BE SON OF LATE LAKSHMISHAPPA R/AT KAMMASANDRA VILLAGE SULIBELE HOBLI, HOSAKOTE TALUK BENGALURU RURAL DISTRICT-562 110

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…RESPONDENTS

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(BY SRI M. S. VARADARAJAN, ADVOCATE FOR R-1 & R-2; VIDE ORDER DATED 28/11/2025, NOTICE TO R-3 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.08.2024 UNDER ANNEXURE-A PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT ON IA NO.1 FILED UNDER SECTION 5 OF THE INDIAN LIMITATION ACT, IN R.A.NO.61/2018 AND CONSEQUENTLY, DISMISS THE R.A NO. 61/2018 FILED BY THE R-3 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT.

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NC: 2025:KHC:49545 WP No. 26459 of 2024

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HC-KAR

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THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard learned counsel for the petitioner and learned

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counsel for respondent Nos.1 and 2.

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This present petition is filed by the petitioners

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who are defendants Nos.1, 3 and 4 in the original suit and respondent Nos.1, 2 and 3 in the first appeal in RA No.61/2018.

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The petitioners are before this Court challenging the order dated 17.08.2024 passed on IA No.I filed under Section 5 of the Limitation Act in RA No.61/2018, whereby the First Appellate Court has condoned the delay and permitted respondent Nos.1 and 2 to proceed further in the appeal.

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It is the vehement contention of learned

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counsel for the petitioners herein that the order passed by

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HC-KAR

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the appellate Court is illegal, erroneous, unjust, perverse and opposed to law. It is also vehemently contented that the First Appellate Court has totally ignored the inordinate delay of 487 days in preferring the appeal, despite bringing to the knowledge of the Court and also an admission has been made with regard to respondent Nos.1 and 2 being aware of disposal of the suit and the regular appeal filed in RA No.2/2017 preferred by respondent No.3, who was the plaintiff before the trial Court.

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It is the contention of learned counsel for the petitioners that respondent Nos.1 and 2 were very much aware of dismissal of the suit in OS No.128/2004 and thereafter, respondent No.1 entered appearance on 04.04.2017 in RA No.2/2017 preferred by the plaintiff and despite having entered appearance in the appeal preferred by the plaintiff in RA No.2/2017, respondent Nos.1 and 2 did not bother to file a separate appeal and slept over the matter for more than 487 days and have now come up with the present appeal seeking condonation of delay of

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HC-KAR

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487 days and the same has been condoned by the First

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Appellate Court which is arbitrary, illegal, perverse and

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without satisfactory explanation for condonation of delay and no sufficient cause and bona fide reasons are shown by respondent Nos.1 and 2 for the same.

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It is further contended that the appellants filed an application to condone the said delay along with an affidavit before the First Appellate Court having shown due diligence, provided satisfactory bona fide reasons and sufficient cause to condone the delay. Therefore, when such admissions are already forthcoming in the affidavit annexed to the application to condone the delay and evidence has been adduced to that effect, the question of condoning the delay does not arise at all and the First Appellate Court has committed a gross error and injustice to the petitioners herein by condoning the delay where the suit came to be dismissed against the very same respondent Nos.1 and 2. On these grounds, he seeks to

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HC-KAR

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allow the petition and consequently, set aside the impugned order.

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Learned counsel for the petitioners relied upon

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the following judgments in support of his case:

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i. P.K.Ramachandran vs. State of Kerala and Another, reported in (1997) 7 SCC 556 .

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ii. Balwant Singh(Dead) vs. Jagdish Singh and others, reported in (2010) 8 SCC 685 .

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iii. Brijesh Kumar and Others vs. State of Haryana and Others, reported in (2014) 11 SCC 351 .

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iv. Basawaraj and another vs. Special Land Acquisition Officer (Crl.A.No.6974 of 2013) c/w Basawaraj and Others vs. Special Land Acquisition Officer (Crl.A.No.6975 of 2013), reported in (2013) 14 SCC 81 .

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v. State of Karnataka and Others vs. S.M.Kotrayya and Others, reported in (1996) 6 SCC 267 .

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vi. R.Raju vs. Rangaswamy and Others, reported in 2024(1) KCCR 364 .

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HC-KAR

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Per contra , learned counsel appearing for

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respondent Nos.1 and 2 vehemently contends that there is no illegality or perversity in the order passed by the First Appellate Court in condoning the delay of 487 days and permitting respondent Nos.1 and 2 to proceed further in the appeal and he sustains the impugned order. He contends that there is another appeal which came to be filed by the plaintiff in RA No.2/2017 in which respondent Nos.1 and 2 as well as the petitioner are contesting.

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It is the vehement contention of learned counsel for respondent Nos.1 and 2 that he has made out sufficient grounds and bona fide reasons and the First Appellate Court has considered the same. In view of the judgment of the Hon'ble Apex Court in the case of Mool Chandra vs. Union of India and Another, Civil Appeal Nos. 8435 – 8436 of 2024 (@ S.L.P. (Civil) Nos. 2733-2734 of 2024), the Court has come to the conclusion that sufficient cause is shown and the rule of law would be that - 'it is not the length of delay, but it is

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the cause for delay which would have to be examined while condoning the delay and if the same comes within the four corners of sufficient cause and satisfactory reasons, the same requires to be allowed'. On this basis, the application came to be allowed by condoning the delay of 487 days. Therefore, he seeks dismissal of this petition.

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While considering an application for

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condonation of delay, the fundamental requirements are that - whether the party seeking condonation of delay has made out sufficient cause and satisfactory explanation and bonafide reasons to condone the delay and while doing so, it is not the length of the delay but it is the cause for occurrence of the delay that requires to be shown by the parties. It is needless to mention that while considering

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such application, the Courts would have to take a pragmatic view rather than a technical approach for condonation of delay. Of course, it is needless to mention that the Court cannot condone the delay where the parties

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seeking condonation, slept over the matter like a

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HC-KAR

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kumbakarna as explained by the Hon'ble Apex Court in the Judgment of Esha Bhattacharjee vs. Mananging Committee of Raghunathpur Nafar Academy &

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others reported in 2013(12) SCC 649 . Therefore, the condonation of delay should be considered leniently.

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With regard to the explanation and sufficient cause shown, the judgments relied upon by the learned counsel for the petitioners may not be helpful to the petitioners for the reason that the Apex Court in the case

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of Esha Bhattacharjee has laid down the guidelines as to how the application for condonation of delay has to be considered wherein the relevant paras 22 to 22.4 is extracted herein below:

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"22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

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22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

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22.2. (b) An application for condonation of delay should not be dealt with in routine manner on the base of individual philosophy which is basically subjective.

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22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

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22.4.(d) The increasing tendency to perceive delay as a non-serious matter and hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

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Para-26 of the judgement of Hon'ble Apex Court

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in the case of Pathapati Subba Reddy (Died) By L.Rs.

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and Others vs. Special Deputy Collector (LA) in Special Leave Petition (Civil) No.31248 of 2018 reads

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as under:

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"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:

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(i) Law of limitation is based upon public policy that here should be an end to litigation by forfeiting the right to remedy rather than the right itself;

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(ii) A right or the remedy that has not been exercised or availed of for a long time must come

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to an end or cease to exist after a fixed period of time;

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(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;

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(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;

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(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;

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(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;

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(vii) Merits of the case are not required to be considered in condoning the delay; and

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(viii) Delay condonation application has to be decided on the parameters laid down for

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condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."

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Under the circumstances, I do not find any illegality or perversity in the order passed by the learned First Appellate Court in condoning the delay of 487 days. It is also relevant to mention that there is already another appeal preferred by the plaintiff in RA No.2/2017 which is pending adjudication. Therefore, the appeal now preferred

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by respondent Nos.1 and 2 who are defendants Nos.2 and 5 in the original suit would not make much of difference to the petitioners who are vehemently opposing the application for condoning the delay. All the more, it is relevant to note that the first appeal is the continuation proceedings of the original suit. Therefore, the right does not culminate for respondent Nos.1 and 2. It would have to be adjudicated before the First Appellate Court as it is for the said Court to reassess the entire materials and

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come to a fresh conclusion on the facts and the law

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involved.

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Accordingly, I pass the following:

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ORDER

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(i) This petition is dismissed .

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(ii) In view of the fact that the original suit is of the year 2004, the First Appellate Court shall expedite the matter.

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(iii) Parties to the proceedings shall cooperate with the First Appellate Court in expeditious disposal.

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(iv) The First Appellate Court shall dispose of the regular appeals within an outer limit of six (06) months from the date of receipt of a copy of this order.

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Sd/-

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(PRADEEP SINGH YERUR) JUDGE

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DS

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List No.: 1 Sl No.: 2

Jayamma v. Bhagyamma

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Jayamma v. Bhagyamma

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