Karnataka High CourtGundappa S/O Lachamappa Lamani vs Topanna S/O Balappa Lamani on 24 May, 2023-1-\n\n\n\n\n                                      IN THE HIGH COURT OF KARNATAKA,\n                                               DHARWAD BENCH\n\n                                     DATED THIS THE 24TH DAY OF MAY, 2023\n\n                                                     BEFORE\n\n                                   THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA\n\n                             REGULAR SECOND APPEAL NO.100157 OF 2016 (DEC/INJ)\n\n                        BETWEEN:\n\n                        1.      GUNDAPPA\n                                S/O. LACHAMAPPA LAMANI\n                                AGE: 37 YEARS,\n                                OCC: AGRICULTURE,\n                                R/O. MAHALINGAPUR TANDA,\n                                MAHALINGAPUR,\n                                TQ. & DIST: GADAG - 582 120.\n\n                        2.      PANDAPPA\n                                S/O. LACHAMAPPA LAMANI\n                                AGE: 32 YEARS,\n                                OCC: AGRICULTURE,\n           Digitally\n                                R/O. MAHALINGAPUR TANDA,\n           signed by\n           YASHAVANT            MAHALINGAPUR,\nYASHAVANT  NARAYANKAR\nNARAYANKAR Date:\n           2023.05.26\n                                TQ. & DIST: GADAG - 582 120.\n           12:01:13\n           +0530\n\n                        3.      BALACHANDRA\n                                S/O. CHANNAPPA LAMANI\n                                AGE: 25 YEARS,\n                                OCC: AGRICULTURE,\n                                R/O. MAHALINGAPUR TANDA,\n                                MAHALINGAPUR,\n                                TQ. & DIST: GADAG - 582 120.                ... APPELLANTS\n\n                        (BY SRI SHIVASAI M. PATIL, ADVOCATE)\n\n                        AND:\n\n                        TOPANNA\n                        S/O. BALAPPA LAMANI,\n                        AGE: 67 YEARS,\n                        OCC: AGRICULTURE,\n                        R/O. MAHALINGAPUR TANDA,\n                        MAHALINGAPUR,\n                        TQ & DIST: GADAG - 582 120.                         ... RESPONDENT\n\n                        (BY SRI A.C. CHAKALABBI AND            SRI   S.B.   DODDAGOUDAR,\n                        ADVOCATES FOR SOLE RESPONDENT)\n                             -2-\n\n\n\n\n     THIS RSA IS FILED UNDER SECTION 100 OFCPC, AGAINST\nTHE JUDGEMENT & DECREE DATED: 02.01.2016 PASSED IN\nR.A.NO.36/2014 ON THE FILE OF THE ADDITIONAL DISTRICT AND\nSESSION JUDGE, AT GADAG, DISMISSING THE APPEAL AND\nCONFIRMING THE JUDGMENT AND DECREE DATED 02.01.2012 AND\nTHE DECREE PASSED IN O.S.NO.26/2010 ON THE FILE OF THE\nSENIOR CIVIL JUDGE GADAG SITTING AT LAXMESHWAR, PARTLY\nDECREEING THE SUIT FILED FOR PARTITION AND SEPARATE\nPOSSESSION, DECLARATION AND CONSEQUENTIAL RELIEF OF\nINJUNCTION.\n\n     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR\nJUDGMENT ON 11/04/2023, COMING FOR PRONOUNCEMENT OF\nJUDGMENT THIS DAY, THIS COURT, PRONOUNCED THE FOLLOWING:\n\n                       JUDGMENTThe legal heirs of defendant No.1 and defendant No.2\n\nare assailing the order passed in R.A. No.36/2014 dated\n\n02.01.2016 on the file of the Additional District and\n\nSessions Judge, Gadag, whereby the application-I.A.No.1\n\nfiled underSection 5of the Limitation Act for condoning\n\nthe delay of 2 years 5 months 15 days (865 days) in\n\npreferring the appeal, consequently dismissing the regular\n\nappeal on the ground of delay and confirming the\n\njudgment and decree of the Trial Court.2.   The parties herein are referred to as per their\n\nranking before the Trial Court for the sake of convenience.-3-3.    The plaintiff-respondent filed a suit for partition\n\nand separate possession. The said suit came to be decreed\n\non 02.01.2012. Aggrieved by the judgment and decree,\n\nthe defendants preferred appeal before the first Appellate\n\nCourt and there was a delay of 865 days in preferring the\n\nfirst appeal, along with the appeal the defendant filed\n\napplication-I.A.No.1 underSection 5of the Limitation Act\n\nseeking to condone the delay in preferring the appeal. The\n\nplaintiff filed objections to the said application. The first\n\nappellate court after hearing both the parties has held that\n\nthe defendant has failed to make out satisfactory and\n\nacceptable ground for condoning the delay in preferring\n\nthe appeal and dismissed I.A.No.1 and consequently,\n\ndismissed the appeal as barred by limitation.4.    Aggrieved by the order of dismissal of the\n\napplication and the appeal, the present appeal by the\n\ndefendants.5.    The appeal has been admitted by this Court on\n\n01.03.2018 by framing the following substantial question\n\nof law:-4-"The counsel for the Appellant brings to my\n     notice that the Regular Appeal filed against the\n     order of the Court below partly decreeing the suit,\n     was   dismissed    on   the    ground    of     delay    by\n     misconstruing the provisions underSection 17of\n     the Limitation Act, 1963, inasmuch as the Section\n     speaks of three year limitation period to be\n     reckoned from the date of knowledge of fraud\n     involved. On this ground, the counsel says, the\n     Regular   Second   Appeal      is   admitted.    In     this\n     connection, substantial question of law No.1 is\n     framed although in a little different language."6.    Heard the learned counsel for the appellants\n\nand the learned counsel appearing for the respondent on\n\nthe substantial question of law framed by this Court.7.    The question of law framed by this Court is with\n\nregard to whether the appellants have made out sufficient\n\nground to condone the delay in preferring the appeal\n\nbefore the first Appellate Court.8.    Facts reveal that the plaintiff filed a suit for\n\npartition and separate possession in respect of three items\n\nas mentioned at Sl. No.1(A), 1(B) and 1(C). According to\n\nthe plaintiff, item No.1(A) was fallen to the share of-5-plaintiff and defendant No.1, in light of the partition\n\namong their brothers, mutation entry has been effected.\n\nSuit item No.1(B) was fallen exclusively to the share of the\n\nplaintiff in the partition and the mutation entry has been\n\neffected and item No.1(C) is also the exclusive property\n\nof the plaintiff. It appears from the plaint averments that\n\nthe suit was filed contending that the defendants were\n\ninterfering and obstructing the rights of the plaintiffs by\n\nwhich the plaintiffs were constrained to file the suit.9.    The summons was issued to the defendants and\n\nthe defendant appeared through their counsel. However,\n\ninspite of sufficient opportunity afforded to the defendant,\n\nthe defendant did not file written statement nor led\n\nevidence and the written statement was taken as Nil,\n\ncross-examination and evidence of defendants were also\n\ntaken as Nil due to the absence of the defendants and\n\ntheir counsel as is evident from paragraph No.4 of the\n\njudgment of the Trial Court.10.   The Trial Court, answered the issues in favour\n\nof the plaintiff, holding that the plaintiff has proved that he-6-is entitled for partition and separate possession of his half\n\nshare in suit item 1(A), declaring the plaintiff as absolute\n\nowner of suit item 1(B) and suit of the plaintiff was\n\ndismissed in respect of item No.1(C). The judgment and\n\ndecree of the Trial Court was challenged by the defendants\n\nwith the delay of 865 days on the ground that the\n\ndefendants were not served with the summons by the Trial\n\nCourt and the defendants had not entrusted case to any\n\nadvocate nor have signed the vakalathnama. Further, it is\n\nurged that the respondent-plaintiff have committed fraud\n\nby signing the vakalath on behalf of the defendants, as\n\ndefendant No.1 never used to sign and only          affix his\n\nthumb impression and the filing of vakalath by the\n\nappellants before the Trial Court is seriously disputed. It\n\nis contended that since the appellants were unaware about\n\nthe filing of the suit as the summons was not duly served\n\nupon him, hence they could not file written statement nor\n\ncross-examine the plaintiff and lead any evidence on their\n\nbehalf and would contend that the reasons for non-filing of\n\nthe appeal within limitation was due to the forgoing\n\nreasons and there is sufficient cause shown by the-7-appellants-defendants and they should be given a liberal\n\nconstruction and the appeal before the first Appellate\n\nCourt underSection 96of CPC being a statutory right\n\nrequires to be condoned in the interest of justice, when\n\nthere is no gross negligence or deliberate inaction by the\n\nappellant seeking to condone the delay.11.   The Apex Court in the case ofBhivchandra\n\nShankar More Vs. Balu Gangaram More and Othersreported in (2019) 6 SCC 387 held at pargraph Nos.12,\n\n15, 16 and 17 as under:"12. The right of appeal underSection 96(2)CPC is a statutory right and the defendant cannot be\n     deprived of the statutory right of appeal merely on\n     the ground that the application filed by him underOrder 9 Rule 13 CPChas been dismissed.InBhanu\n     Kumar Jain v. Archana Kumar, the Supreme Court\n     considered the question whether the first appeal\n     was   maintainable   despite   the   fact   that   an\n     application underOrder 9 Rule 13 CPCwas filed and\n     dismissed. Observing that the right of appeal is a\n     statutory right and that the litigant cannot be\n     deprived of such right, in paras (36) and (38), it\n     was held as under: (SCC pp. 799-800)-8-"36.     ...   A        right   to       question     the\ncorrectness of the decree in a first appeal is a\nstatutory right.Such a right shall not be\ncurtailed nor shall any embargo be fixed\nthereupon unless the statute expressly or by\nnecessary implication says so. (SeeDeepal\nGirishbhai Soni v. United India Insurance Co.\nLtd.and Chandragupta P.K. v. C.K. Saji.)\n                             * *         *38.     The dichotomy, in our opinion, can\nbe resolved by holding that whereas the\ndefendant would not be permitted to raise a\ncontention as regards the correctness or\notherwise of the order posting the suit for ex\nparte   hearing        by    the    trial    court     and/or\nexistence    of    a    sufficient       case    for    non-\nappearance of the defendant before it, it\nwould be open to him to argue in the first\nappeal filed by him under Section 96(2) of\nthe Code on the merits of the suit so as to\nenable him to contend that the materials\nbrought on record by the plaintiffs were not\nsufficient for passing a decree in his favour or\nthe suit was otherwise not maintainable. Lack\nof jurisdiction of the court can also be a\npossible plea in such an appeal. We, however,\nagree      with    Mr         Chaudhari         that      the\n"Explanation" appended to Order 9 Rule 13 of\nthe Code shall receive a strict construction as\nwas held by this Court in Rani Choudhury v.-9-Suraj      Jit     Choudhary,          P.Kiran   Kumar         v.A.S.Khadar and Shyam Sundar Sarma v\n   Pannalal Jaiswal."15.      It     is   a   fairly     well-settled     law     that\n"sufficient         cause"     should        be     given        liberal\nconstruction so as to advance sustainable justice\nwhen there is no inaction, no negligence nor want of\nbona fides could be imputable to the appellant. After\nreferring to various judgments, in B. Madhuri, this\nCourt held as under: (SCC p. 696, para 6)\n\n\n        "6. The expression "sufficient cause" used\n   inSection 5of the Limitation Act, 1963 and\n   other statutes is elastic enough to enable the\n   courts to apply the law in a meaningful\n   manner which serves the ends of justice. No\n   hard-and-fast rule has been or can be laid\n   down       for     deciding        the    applications        for\n   condonation of delay but over the years\n   courts have repeatedly observed that a liberal\n   approach          needs     to    be     adopted   in    such\n   matters so that substantive rights of the\n   parties are not defeated only on the ground\n   of delay"16. Observing that the rules of limitation are\nnot meant to destroy the rights of the parties, inN.Balakrishnan v. M.Krishnamurthy, this Court held\nas under: (SCC pp. 127-28, para 11)- 10 -"11. Rules of limitation are not meant to\n  destroy the rights of parties. They are meant\n  to see that parties do not resort to dilatory\n  tactics, but seek their remedy promptly. The\n  object of providing a legal remedy is to repair\n  the damage caused by reason of legal injury.\n  The law of limitation fixes a lifespan for such\n  legal remedy for the redress of the legal\n  injury so suffered. Time is precious and\n  wasted time would never revisit. During the\n  efflux of time, newer causes would sprout up\n  necessitating newer persons to seek legal\n  remedy by approaching the courts. So a\n  lifespan must be fixed for each remedy.\n  Unending period for launching the remedy\n  may        lead   to   unending    uncertainty     and\n  consequential anarchy. The law of limitation\n  is    thus    founded    on    public   policy.   It   is\n  enshrined in the maxim interest reipublicae\n  up sit finis litium (it is for the general welfare\n  that a period be put to litigation). Rules of\n  limitation are not meant to destroy the rights\n  of the parties. They are meant to see that\n  parties do not resort to dilatory tactics but\n  seek their remedy promptly. The idea is that\n  every legal remedy must be kept alive for a\n  legislatively fixed period of time."17.     As pointed out earlier, an appeal underSection 96CPC is a statutory right. Generally,- 11 -delays in preferring appeals are required to be\n     condoned, in the interest of justice, where there is\n     no gross negligence or deliberate inaction or lack of\n     bona fides is imputable to the party          seeking\n     condonation of delay."12.    The appeal underSection 96of CPC being a\n\nstatutory right, generally delay in preferring the appeal are\n\nrequired to be condoned in the interest of justice, where\n\nthere is no gross negligence or deliberate inaction or lack\n\nof bona fide is imputable to the party seeking condonation\n\nof delay.13.    The Apex Court in the case ofN. Balakrishnan\n\nVs. M. Krishnamurthyreported in (1998) 7 SCC 123 at\n\nparagraph Nos.9, 10, 11, 12 and 13 held that the rules of\n\nlimitation are not meant to destroy the rights of the\n\nparties, which reads as under:"9.   It is axiomatic that condonation of delay\n     is a matter of discretion of the court.Section 5of\n     the Limitation Act does not say that such discretion\n     can be exercised only if the delay is within a certain\n     limit. Length of delay is no matter, acceptability of\n     the explanation is the only criterion. Sometimes\n     delay of the shortest range may be uncondonable- 12 -due to a want of acceptable explanation whereas in\ncertain other cases, delay of a very long range can\nbe   condoned      as   the    explanation    thereof     is\nsatisfactory. Once the court accepts the explanation\nas sufficient, it is the result of positive exercise of\ndiscretion and normally the superior court should\nnot disturb such finding, much less in revisional\njurisdiction, unless the exercise of discretion was on\nwholly untenable grounds or arbitrary or perverse.\nBut it is a different matter when the first court\nrefuses to condone the delay. In such cases, the\nsuperior court would be free to consider the cause\nshown for the delay afresh and it is open to such\nsuperior court to come to its own finding even\nuntrammelled by the conclusion of the lower court.10.   The reason for such a different stance is\nthus:The   primary   function   of   a    court   is   to\nadjudicate the dispute between the parties and to\nadvance substantial justice. The time-limit fixed for\napproaching the court in different situations is not\nbecause on the expiry of such time a bad cause\nwould transform into a good cause.11.   Rules of limitation are not meant to\ndestroy the rights of parties. They are meant to see\nthat parties do not resort to dilatory tactics, but\nseek their remedy promptly. The object of providing\na legal remedy is to repair the damage caused by\nreason of legal injury. The law of limitation fixes a- 13 -lifespan for such legal remedy for the redress of the\nlegal injury so suffered. Time is precious and wasted\ntime would never revisit. During the efflux of time,\nnewer causes would sprout up necessitating newer\npersons to seek legal remedy by approaching the\ncourts. So a lifespan must be fixed for each remedy.\nUnending period for launching the remedy may lead\nto unending uncertainty and consequential anarchy.\nThe law of limitation is thus founded on public\npolicy. It     is   enshrined   in    the   maxim   interest\nreipublicae up sit finis litium (it is for the general\nwelfare that a period be put to litigation). Rules of\nlimitation are not meant to destroy the rights of the\nparties. They are meant to see that parties do not\nresort to dilatory tactics but seek their remedy\npromptly. The idea is that every legal remedy must\nbe kept alive for a legislatively fixed period of time.12.    A court knows that refusal to condone\ndelay would result in foreclosing a suitor from\nputting forth his cause. There is no presumption\nthat delay in approaching the court is always\ndeliberate. This Court has held that the words\n"sufficient cause" underSection 5of the Limitation\nAct should receive a liberal construction so as to\nadvance substantial justice videShakuntala Devi\nJain   v.    Kuntal   KumariandState   of   W.B. v.\nAdministrator, Howrah Municipality.13.    It must be remembered that in every\ncase of delay, there can be some lapse on the part- 14 -of the litigant concerned. That alone is not enough\n     to turn down his plea and to shut the door against\n     him. If the explanation does not smack of mala fides\n     or it is not put forth as part of a dilatory strategy,\n     the court must show utmost consideration to the\n     suitor. But when there is reasonable ground to think\n     that     the    delay   was    occasioned        by   the   party\n     deliberately to gain time, then the court should lean\n     against        acceptance     of   the     explanation.     While\n     condoning the delay, the court should not forget the\n     opposite party altogether. It must be borne in mind\n     that he is a loser and he too would have incurred\n     quite large litigation expenses. It would be a\n     salutary guideline that when courts condone the\n     delay due to laches on the part of the applicant, the\n     court shall compensate the opposite party for his\n     loss."14.      In the present case, the appeal underSection\n\n96of CPC before the first appellate Court, there was a\n\ndelay of 865 days in filing the appeal and in light of the\n\ndecisions of the Apex Court as stated supra is that,\n\nacceptability of explanation of delay is the sole criteria,\n\nlength of delay is not relevant. It is pertinent to note that\n\nthe reasons         assigned by the appellants for the delay\n\nin preferring       the   appeal is          on the   ground     of   fraud\n\nhaving been committed, andSection 17of the Limitation- 15 -Act prescribes three years from the date the applicant has\n\ndiscovered the fraud. The First Appellate Court dismissed\n\nthe appeal on the ground of delay. By enactingSection 5of the Limitation Act, 1963, the legislature has conferred\n\nthe power to condone the delay in order to enable the\n\nCourts to do substantial justice to the parties by disposing\n\nof matters on "merits". The expression "sufficient cause"employed by the legislature is adequately elastic to enable\n\nthe Courts to apply the law in a meaningful manner which\n\nsub-serves the ends of justice and that being the life\n\npurpose for the existence of the institution of Courts and\n\nrefusing to condone the delay can result in miscarriage of\n\njustice.15.    For   the    foregoing      reasons,   the    substantial\n\nquestion of law needs to be answered in the affirmative\n\nand the appeal to be remanded back to the first Appellate\n\nCourt by condoning delay of 865 days in filing the appeal\n\nwith a direction to consider the appeal on merits after\n\naffording   sufficient   opportunity      to   both      the   parties.- 16 -However, looking into the delay there needs to be\n\nimposition of reasonable cost on the appellants.16.   Accordingly, this Court pass the following:ORDER\n\n  i.       The present second appeal by the defendants is\n\n           hereby allowed.ii.      The order on I.A.No.1 underSection 5of the\n\n           Limitation    Act,    1963     dated   03.01.2016   in\n\n           R.A.No.36/2014 on the file of the Additional\n\n           District and Sessions Judge, Gadag is hereby set\n\n           aside and I.A.No.1 is allowed. Delay of 865 days\n\n           in filing the appeal is condoned subject to the\n\n           appellants paying cost of Rs.20,000/- to the\n\n           plaintiff on or before 19/06/2023.\n\n  iii.     The matter is remitted back to the first Appellate\n\n           Court and the parties are directed to appear\n\n           before the first Appellate Court on 19.06.2023\n\n           and the first Appellate Court to consider the\n\n           appeal on merits after affording sufficient and\n\n           reasonable opportunity to both the sides.- 17 -iv.    The first Appellate Court to dispose of the appeal\n\n         as expeditiously as possible within an outer limit\n\n         of six months from the date of receipt of certified\n\n         copy of this judgment.v.     All the contentions of the parties are kept open.Sd/-JUDGE\n\nNaa/S*