T P Maruthi Vs T P Gangakumar

(BY SRI K.R. RAMESH, ADVOCATE FOR C/R-1 & ALSO FOR IMPLEADING APPLICANT; SRI T. BASAVARAJ, ADVOCATE FOR R-2; SRI T.S. LAKSHMISHA, ADVOCATE FOR R-4; V/O/D 16.12.2019 NOTICE TO R-3 IS SERVED & UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE ORDER DATED 17.08.2019 PASSED ON I.A.NO.1 IN R.A.NO.164/2018 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, TUMAKURU REJECTING THE I.A.NO.1 FILED UNDER SECTION 5 OF THE LIMITATION ACT AND FILED AGAINST THE JUDGMENT AND DECREE DATED 17.01.2017 PASSED IN O.S.NO.208/2001 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE

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AND CJM, TUMAKURU PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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With consent of both parties, the appeal is taken up

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for final disposal.

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2. This Court has framed the following substantial

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question of law :

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Whether the first Appellate Court was justified in dismissing the appeal on the ground of delay and whether the same warrants interference by this Court?

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Heard Sri S.P.Shankar, the learned Senior

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Counsel appearing for the appellants and the learned counsel appearing for respondent No. 4 on the substantial question of law framed by this Court.

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The present Regular Second Appeal is preferred

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against the order dated 17.08.2019 in R.A 164/2018 on

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the file of the Principal District and Sessions Judge, Tumakuru, (‘the first Appellate Court’ for short), whereby the appeal filed by the appellants came to be dismissed on the ground of delay.

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The original plaintiff, T.P Maruthi, filed a suit for partition and separate possession in respect of suit schedule properties, contending that the properties are joint family properties of the original propositus C.B Puttaswamy. The Trial Court, on contest, partly decreed the suit holding that:

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i. The plaintiffs are entitled for half share in suit item Nos. II(a), (b), II (e), 15 guntas in item No.III (b) and IV(b) of suit schedule properties.

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ii. Item Nos. II(c), 16 guntas in item No. III(a) and IV(a) came to be allotted to the share of the plaintiffs and item Nos. I(a), (b) and (V) came to be allotted to the share of the first defendant.

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Aggrieved by the partial denial of relief, the plaintiffs preferred Regular Appeal before the first

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Appellate Court. Along with the appeal, an application under Section 5 of the Limitation Act, 1963 was filed seeking to condone the delay of 470 days. The first Appellate Court rejected the application for condonation of delay and consequently dismissed the appeal. Aggrieved by the same, the present appeal.

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Sri S.P.Shankar, the learned Senior Counsel appearing for the appellants, submits that:

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i. The first Appellate Court, has adopted a technical and erroneous approach in refusing condonation of delay.

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ii. The delay was sufficiently explained on account of medical and family circumstances.

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iii. The respondent No.1 did not contest the application for condonation of delay.

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iv. Respondent No.4 being a purchaser pendente lite has no substantial locus to oppose the condonation.

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v. The first Appellate Court being the final fact

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finding Court ought to have decided the appeal on merits.

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vi. Rejection of the delay application has resulted in denial of valuable rights including property rights protected under Article 300A of the constitution.

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Per contra , the learned counsel appearing for

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the respondent No. 4 sought to justify the judgment of the first Appellate Court and submits that :

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i. No sufficient cause was made out for condonation of delay

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ii. The first Appellate Court has rightly exercised its discretion

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iii. Respondent No.4 is a bonafide purchaser and her rights required protection.

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This Court has carefully considered the

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submissions and perused the entire material on record. At

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the outset, it is necessary to cull out the genealogical tree

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of the parties which is as under :

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Puttaswamy

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Gangamma (Wife)

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Maruti Gangadhar Gangakumar (Plaintiff) (died issueless) (D-1)

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It is not in dispute that the original propositus,

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late C.B. Puttaswamy had three sons, namely, Maruti, Gangadhar and Gangakumar. The appellant Nos. 1 (b), (c) and (d) are children of Maruthi. Gangadhar died issueless. Defendant No.1-Gangakumar also died during the pendency of the present proceedings. In view of death of Gangakumar, who died unmarried, the plaintiffs being the children of his brother Maruti, would succeed to his estate

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in accordance with law. However, the said aspect is subject to the adjudication in the appeal and cannot be

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conclusively determined at the stage without proper consideration of the rights of the parties on merits.

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It is also relevant to note that item No.V of the suit schedule property is stated to have been alienated by defendant No.1 in favour of defendant No.4 during the pendency of the suit. The validity and effect of such alienation, as well as the entitlement of the plaintiffs to a share in the said property, are matters which require adjudication on merits by the first Appellate Court.

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The first Appellate Court has dismissed the appeal solely on the ground of delay without examining the merits of the case. The Apex Court in the case of Santosh Hazari v. Purushottam Tiwari¹ (Santosh Hazari) has clearly laid down that the appeal under Section 96 of the CPC is a valuable right and the first Appellate Court has to carefully appreciate the entire oral and documentary evidence and held at paragraph No.15 as under:

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1 (2001) 3 SCC 179

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“15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put

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forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that

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when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing a finding of

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fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.”

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Dismissal of a first appeal solely on the ground of delay without adjudicating on merits, results in denial of substantive justice. By refusing to condone the delay the first Appellate Court has effectively deprived the appellants of the right to have the matter adjudicated on merits, particularly in a case involving partition and property rights. The law is well settled that the Courts have to adopt a liberal, and pragmatic and justice oriented approach. The ‘ sufficient cause’ must be construed elastically and substantial justice must prevail over technicalities.

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The Apex Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others² has laid down the following principles at paragraph No.21 as under:

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2 (2013) 12 SCC 649

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“21. From the aforesaid authorities the principles that can broadly be culled out are:

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21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

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21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

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21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public

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justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to

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expose the other side unnecessarily to face such a litigation.

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21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

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21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

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The settled proposition of law with regard to condonation of delay is that, ordinarily a litigant does not stand to benefit by filing an appeal belatedly. Refusal to condone delay may result in meritorious matter being thrown out of at the very threshold, thereby defeating the cause of justice. The expression ‘Every day's delay must be explained’ does not warrant a pedantic or hyper

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technical approach, rather the doctrine has to be applied

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in a rational and a pragmatic manner.

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When substantial justice and technical consideration are pitted against each other, the cause of substantial justice must prevail, as no party can claim a vested right in injustice being done on account of a nondeliberate delay. There is no presumption that the delay is occasioned deliberately, or due to culpable negligence or malafides. On the contrary, a litigant runs the risk of the dismissal by approaching the Court belatedly.

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In the present case, the delay is of 470 days. The reasons assigned in the affidavit filed in support of the application under Section 5 of the Limitation Act, 1963, is culled out for ready reference:

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“I, Narendrababu T.M. S/o Late T.P.Maruthi, aged about 40 years, the appellant No.1(c) in the above case and resident of VR Colony, Tumkuru do hereby solemnly affirm and state an oath as follows:

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I submit that myself and other plaintiffs have filed the suit against the defendants for declaration

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and permanent injunction in O.S.208/2001 before the I Addl. Senior Civil Judge and CJM, Tumakuru, the said suit has been decreed in part.

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I submit that even though I obtained certified copy of the judgment and decree to prefer the appeal, I could not able to prefer appeal because, I undergone surgery as I was suffering from Pistula, due to which I was bed ridden for more than months. Thereafter, my mother appellant no.1 Gowramma was sustained grievous injuries over her left leg by falling in the both room and hospitalized. then further she is suffering from "Osteophytes" and "colloid goiter” Further, my mother in law (wife mother) died and nobody is looking after their family as his father in law alone is residing and I alone has to look after him. Under these circumstances, myself and my family members are depressed and not able to contact my counsel to give instructions to prefer appeal. Non filing of appeal in time is bonafide one and an intentional one. I have good grounds to urge before this Hon'ble court.

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I submit that the grounds raised and the facts spelt out in the memorandum of appeal may kindly be read as part and parcel of this affidavit.

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I submit that if the accompanying application is not allowed myself and my family will be put to untold misery, irreparable loss injury and lot of inconvenience, whereas no prejudice would be caused to the respondents if the application is allowed. I further submit that I have got a good case on merits and a very good chance of success in appeal.

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Under such circumstances, it is respectfully prayed that this Hon'ble court may kindly be pleased to allow the accompanying application as prayed for in the interest of justice.

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So, I do swear in the name of God, that this is my name, signature and contents of the affidavit are true and correct.”

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The reasons indicated disclose that the delay occurred due to medical and personal difficulties faced by the appellants. The explanation, when considered in the background of the nature of dispute, namely a suit for partition involving property rights, cannot be said to be wholly untenable or lacking in bonafides so as to deny the appellants an opportunity to prosecute the appeal on

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merits. In the absence of any material to show malafides, or deliberate inaction on part of the appellants, this Court is of the considered view that the explanation offered constitutes ‘ sufficient cause’ within the meaning of Section 5 of the Limitation Act, 1963. In view of the foregoing reasons, this Court is of the considered opinion that the first Appellate Court had adopted a technical approach in refusing to condone the delay and has resulted in denial of opportunity to the appellants to have the matter adjudicated on merits. Accordingly, the substantial question of law framed is answered in favour of the appellants and the impugned judgment warrants interference. Accordingly, the following:

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ORDER

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(i) The Regular Second Appeal is hereby allowed in part.

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(ii) The judgment and decree dated 17.08.2019 in R.A. No.164/2018 on the file of the Principal

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District and Sessions Judge, Tumakuru, is

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hereby set aside.

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(iii) The delay of 470 days in filing the Regular Appeal is condoned. Consequently, the application filed seeking condonation in preferring the Regular Appeal is condoned and R.A. 164/2018 is restored to file.

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(iv) The matter is remitted back to the first Appellate Court for fresh disposal on merits in accordance with law.

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(v) All the contentions of the parties are kept open.

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(vi) The parties shall appear before the first Appellate Court on 03.06.2026.

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(vii) Having regard to the fact that the appeal is of the year 2018, the first Appellate Court shall dispose of the appeal as expeditiously as possible.

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(viii) The impleading applicant in I.A. No.1/2021

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who claims rights pursuant to a decree for specific performance, is at liberty to work out his remedy before the appropriate forum in accordance with law. Accordingly, I.A No.

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1/2021 stands disposed of.

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The pending I.As, if any, does not survive for

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consideration.

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Sd/-

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____________________ JUSTICE K.S. HEMALEKHA

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CKL