Kotramma Vs R. B. Eshwarappa

THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION IN THE NATURE OF WRIT, QUASHING THE ORDER PASSED BY

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THE SENIOR CIVIL JUDGE AND JMFC AT HOLALKERE IN R.A.NO.89/2016 ON IA-I DTD:7.6.2019 VIDE ANNEXURE-F TO THIS W.P. & ETC.

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IN W.P. NO.38688/2019:

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BETWEEN:

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KOTRAMMA W/O LATE ESHWARAPPA AGED ABOUT 69 YEARS R/O. KAMANA BHAVI EXTENSION CHITRADURGA TOWN-577 501.

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...PETITIONER

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(BY SRI. R. SHASHIDHARA, ADV.,)

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AND:

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R.B. ESHWARAPPA S/O BASAPPA AGED ABOUT 73 YEARS R/O. CHITRAHALLI VILLAGE HOLALKERE TALUK-577 526.

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NAGRAJ S/O LATE ESHWARAPPA,AGE MAJOR, AGE MAJOR.

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MAHALINGAPPA S/O LATE ESHWARAPPA AGE MAJOR.

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BOTH ARE R/O. KAMANA BHAVI EXTENSION CHITRADURGA TOWN-577 501.

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...RESPONDENTS

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(BY SRI. HANUMANTHARAYA D, ADV., FOR R1

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R2 & R3 SERVED AND UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION, IN THE NATURE OF WRIT, QUASHING THE ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT HOLALKERE IN R.A.NO.88/2016 ON IA-I DTD7.6.2019 VIDE ANNEXURE-F TO THIS W.P. & ETC.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Since these two writ petitions are between the same parties in respect of same subject matter namely, property bearing Sy.No.91 of Haralikere Village, Talya Hobli, Holalkere Taluk, being claimed by the parties, the same are taken up for analogous hearing and common disposal.

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Common petitioner in these petitions namely Smt.Kotramma had filed a suit in O.S.No.129/1999 against the respondent herein namely Sri.R.B.Eshwarappa seeking judgment and decree of permanent injunction in respect of the aforesaid property. The said suit on contest was decreed on 04.04.2002 in favour of Kotramma. No appeal against the said judgment and decree have been filed, the same attained

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finality. Thereafter, R.B.Eshwarappa, the respondent herein filed a suit in O.S.No.51/2006 against Kotramma, the petitioner herein seeking relief of declaration and permanent injunction also seeking relief to cancel the judgement and decree passed in O.S.No.129/1999. On contest, the said suit was partly allowed, whereby R.B.Eshwarappa, the respondent herein was declared to be the owner of the property. However, his prayer for cancellation of decree in O.S.No.129/1999 and relief of permanent injunction was rejected. No appeal is filed by R.B.Eshwarappa, the respondent herein even against the said judgment and decree dated 09.04.2007 passed in O.S.No.51/2006.

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However, Kotramma, the petitioner herein filed regular appeal in RA.No.23/2010 being aggrieved by the judgement and decree passed in O.S.No.51/2006 to the extent decreeing the said suit granting relief of declaration in favour of R.B.Eshwarappa, the respondent herein. The said regular appeal was allowed by the judgement and order dated 19.08.2013 dismissing the suit in O.S.No.51/2006 filed by R.B.Eshwarappa, the respondent.

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As against the said judgement and order, R.B.Eshwarappa, the respondent herein has filed regular second appeal in RSA.No.1823/2013 which is pending consideration before this Court. Things stood thus, R.B.Eshwarappa, the respondent herein has filed a regular appeal in RA.No.89/2016 which is subject matter of W.P.No.38689/2019 before the Senior Civil Judge and Additional MACT at Holalkere (First Appellate Court) questioning the judgement and decree dated 04.04.2002 passed in O.S.No.129/1999. The said appeal is filed on 08.09.2016 after the lapse of 14 years 5 months 4 days.

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R.B.Eshwarappa, the respondent herein has also filed another regular appeal in RA.No.88/2016 which is subject matter of W.P.No.38688/2019 challenging the judgement and decree dated 09.04.2007 passed in O.S.No.51/2006 filed by him to the extent declining his prayer for cancellation of decree in O.S.No.129/1999 and for permanent injunction. The said appeal is filed on 08.09.2016 after lapse of 9 years 4 months 29 days.

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Applications under Section 5 of the Limitation Act, 1963 have been filed in both the aforesaid appeals seeking condonation of delay. Objections to the said applications were filed by Kotramma, the petitioner herein. The First Appellate Court by the order dated 07.06.2019 produced at Annexure-F to both the writ petitions has allowed the said applications filed by R.B.Eshwarappa, the respondent herein condoning the delay of 14 years 5 months 4 days in filing RA.No.89/2016 and 9 years 4 months 29 days in filing RA.No.88/2016. Being aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner reiterating the averments and the grounds urged in the petitions and also taking this Court through the affidavits filed along with the applications under Section 5 of the Limitation Act in both the aforesaid appeals vehemently submits that the First Appellate Court grossly erred in condoning the inordinate delay, that too in the absence of any cause much less a sufficient cause being shown by R.B.Eshwarappa, the respondent herein. He submits there is no whisper in the affidavits filed along with the applications as to the reason of his inability to file the appeals within the time stipulated under Section 5 of the Limitation Act.

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He further submits that R.B.Eshwarappa, the respondent has been actively participating in both the suits and is completely aware of the orders passed therein and he not having taken action within the time stipulated under the law cannot be heard to plead his ignorance at this highly belated point in time causing prejudice to the petitioner in this matter. Hence, seeks for allowing of the petition and to set aside the order impugned in these two writ petitions.

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Learned counsel for R.B.Eshwarappa, the respondent on the other hand vehemently submits that the very obtaining of the judgement and decree in O.S.No.129/1999 was by playing fraud on the Court. It is his submission that a deed of sale dated 02.03.1998 that has been executed by one Eshwarappa and B.Nagendrappa in favour of R.B.Eshwarappa, the respondent herein. The said Kotramma is none other than the wife of Eshwarappa, the vendor under the said sale deed which factor has been suppressed by Kotramma. He submits fraud vitiates everything and decree obtained by playing fraud is a nullity and challenge to the said decree can be raised at any stage, under any circumstances, and during any proceedings. Therefore, the question of limitation shall not

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be an impediment for raising the question. He extensively read the grounds urged in the appeals to convince that since fraud is writ large, the technical issue of limitation should not overtake

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the requirement of dispensation of justice is his submission. Hence, seeks for dismissal of the petitions confirming the order passed by the trial Court.

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9. Heard and perused the records.

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"Sufficient cause" referred to under Section 5 of the Limitation Act which prevented party from availing the remedy within the prescribed period of limitation should be for the period and within the period prescribed under the Statute. In other words, party seeking condonation of delay shall establish that there was sufficient cause for not filing the appeal within

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the time stipulated. When a party allows limitation to expire, cannot plead sufficient cause for subsequent period for not filing the appeal earlier. Sufficient cause must establish that because of some event or circumstances arising before limitation expired it was not possible to file appeal within time.

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That no event or circumstance arising after expiry of limitation

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can constitute such sufficient cause. [RAMLAL, MOTILAL AND

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CHHOTELAL VS. REWA COALFIELDS LIMITED (1962) 2

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SCR 762, AJIT SINGH THAKUR SINGH AND ANOTHER vs.

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STATE OF GUJARAT (1981) 1 SCC 495].

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In the light of the aforesaid settled law, it is appropriate to extract the affidavit filed by the respondent which is common in both the cases which reads as under:

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AFFIDAVIT

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"I, R.B. Eshwarappa S/o Basappa, Aged about 70 years, R/o Chitrahalli village, Holalkere Taluk-577526 do hereby solemnly affirm and state on oath as follows:-

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1. I am the Appellant in the above Regular Appeal and I am conversant with the facts of the case. Hence I am swearing to the Affidavit.

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2. I state that the Memorandum of Regular Appeal may kindly be read as a part and parcel of the above application in order to avoid repetition of facts and law.

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3. I state that in prosecuting the above Appeal there is delay of 14 (years 05 months 04 days). I state that the delay is not intentional or deliberate one. I submit that the contents raised in the Appeal itself establishes that the judgment and decree obtained by the respondent by playing fraud on the Court and it is clearly evident on the face of the document which were relied before the Trial Court.

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4. I state that pursuant to the suit summons issued by the Trial Court, I filed my vakalath and thereafter, I produced necessary documents for prosecuting my case before the Trial Court. However, my advocate has not prosecuted the case before the Trial Court and not submitted the documents produced by me.

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5. I state that I am totally illiterate and I do not have any worldly knowledge about proceedings before the Trial Court. Thereafter, when did my advocate not communicated about decreeing of the suit by the Trial Court. At the instance of some other advocate, I came to know about the decree passed by the Trial Court in the above said suit. Thereafter, I

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have consulted with other Advocate, who advised me to file suit for declaration before this Hon'ble Court. Hence, immediately, I have preferred suit in O.S.51/2006 before this Hon'ble Court for the releief of declaration of my ownership by virtue of the sale deed of the year 1988. Thereafter, I have no information and I have no worldly knowledge in regard to the proceedings contemplated under law whether without challenging the judgment in O.S.129/99 that judgment is binding on me or not.

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6. I state that after partly decreeing my suit in O.S.51/2006, the respondents herein have preferred R.A. before the first Appellant Court in Appeal in R.A.No.23/2010. Thereafter, I have consulted with my advocate regarding reversing judgment by the Trial Court in R.A.No.23/2010 by the first appellate Court i.e., Senior Civil Judge, Holalkere. Thereafter, through my friend I have sent all the documents to my Advocate. Now who is prosecuting my Regular Second Appeal in RSA No.1823/2013 before the Hon'ble High Court of Karnataka. I have not met personally my advocate at Bengaluru, who is prosecuting my case before Hon'ble High Court of Karnataka.

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7. I state that on one occasion out of curiosity I have met my advocate in Bengaluru to know what is the status of the case. My advocate has advised me to file RA before Senior Civil Judge, Holalkere. Thereafter, as per the advise of my advocate in RSA 1823/2013 I have preferred the present Appeal before this Hon'ble Court.

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8. I state that I am diligent in my right and also even I am diligent right in preferring this Appeal. Even delay in prosecuting this Appeal is not deliberate one. For the above said bonafide reason stated above in the Appeal, the delay is caused. I state that knowledge in regard to the proceedings which is paramount consideration while condonation of delay and hence, I file this Appeal.

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9. Hence, this application for condonation of delay. I am advised to state that I have a good case on merits and no prejudice will be caused to the other side if the accompanying application is allowed and the matter is heard and disposed on merits. If on the other hand, the application is dismissed, I would be put to great hardship and misery, which cannot be compensated in terms of money.

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WHEREFORE, it is most humbly pray that this Hon'ble court be pleased condone the delay in prosecuting the present Appeal as prayed for in the accompanying application, in the interest of justice and equity.

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(I do swear in the name of the god above said contents and signature true and correct)."

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12. There is no whisper as to the reason/explanation of

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his inability to file the appeals as required under law except stating that he was not properly advised regarding of filing of the appeals against the findings in O.S.No.129/1999 as well as in O.S.No.51/2006. But he was advised by his counsel after he filing RSA.No.1823/2013. Except this, there is no other reason/explanation offered in the affidavits. It is not the case of R.B.Eshwarappa, the respondent herein that he was completely unaware of the proceedings as recalled in the facts extracted herein above. He himself has participated in O.S.No.129/1999 and being aggrieved by the judgement and decree passed therein has filed his own suit in O.S.No.51/2006, that too on 07.08.2006 seeking relief in the nature of declaration and cancellation of the said judgement and decree passed in the very suit in O.S.No.129/1999. Decree that was partly passed his favour in O.S.No.51/2006 has not been challenged in time by him either. So much for R.B.Eshwarappa, the respondent herein to claim petitioner Kotramma obtained the decree by playing fraud.

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It is settled position of law even in the case of fraud, if a party comes to know about the fraud having been played, he is required to take action within reasonable time. He cannot be expected to sleep over his right merely because he thinks the decree is obtained by fraud can be nullified at any time.

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The First Appellate Court has merely referred to the case laws which provide that the provisions of Section 5 of the Limitation Act has to be construed liberally, without adverting to the aforesaid factual aspects of the matter. It is equally settled law that the liberal construction of provision of Section 5 of the Limitation Act does not mean that the same shall be considered so liberally, that the right vested in favour of the opposite party be ignored.

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In any event the respondent is stated to have

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preferred a regular second appeal in RSA.No.1823/2013 questioning the judgment and decree passed in O.S.No.51/2006 in which he had indeed sought for cancellation

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of the judgement and degree passed in O.S.No.129/1999 as such the said issue is still pending consideration. Even on the

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ground of hardship, no grounds has been made out by the respondent inasmuch as his claim for setting aside of the said decree which is still pending consideration before this Court.

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For the aforesaid reasons, for want of sufficient cause as required under law in terms of Section 5 of the Limitation Act, the application filed under Section 5 of the Limitation Act is required to be set aside.

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The writ petitions are allowed . The orders dated 07.06.2019 passed on IA.No.1 in RA.Nos.88/2016 and 89/2016 by the Senior Civil Judge and JMFC, Holalkere are consequently set aside.

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Accordingly, pending IAs, if any, are dismissed.

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SD/(M.G.S. KAMAL) JUDGE

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ABK/ List No.: 1 Sl No.: 10

Kotramma v. R. B. Eshwarappa

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Kotramma v. R. B. Eshwarappa

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