IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER 2019 BEFORE The Hon’ble Mr.JusticeB.M.Shyam Prasad Regular Second Appeal No.526 of 2016 (par) Between:
MRS FLORENCE JOSEPH AGED ABOUT 69 YEARS WIFE OF LATE P.K. JOSEPH RESIDING AT MANASI, NO.5, YADAVGIRI MYSURU-01 ... APPELLANT (BY SRI VISHWAJITH RAI.M, ADVOCATE) And:
1. MR. PRAKASH TEJPAL AGED ABOUT 64 YEARS SON OF LATE G.S. TEJPAL RESIDING AT PALDANE, NEERMARGA 2. MR. CYRIL TEJPAL AGED ABOUT 66 YEARS SON OF LATE C.S.TEJPAL RESIDING AT D.NO.9-163, NEKKAREMARUK KANKANADY POST, MANGALURU-01 3. MRS. EMINA AMMANNA AGED ABOUT 57 YEARS DAUGHTER OF LATE C.S. TEJPAL R/AT MYLAR MISSION COMPOUND, KUDROLI, MANGALURU-01 4. MR. GLADSON RAVI TEJPAL AGED ABOUT 52 YEARS SON OF LATE C.S. TEJPAL R/AT SANNAMAHADEVAPPA VINOBHANAGAR, DAVANAGERE-01 5. MR. VIJAY TEJPAL AGED ABOUT 47 YEARS SON OF LATE C.S. TEJPAL R/AT NEKKAREMARU KANKANADY POST, MANGALURU ... RESPONDENTS (RESPONDENT NOS.1-5 SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 29.02.2016 PASSED IN R.A. NO.71/10 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.MANGALURU, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 19.09.2009 PASSED IN OS.NO.111/2003 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (SR. DN.), MANGALURU.D.K.
THIS REGULAR SECOND APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant No.2 in O.S.No.111/2003 on the file of the II Additional Senior Civil Judge, Mangaluru.D.K (for short, ‘the trial Court’). The suit in O.S.No.111/2003 is a suit for partition which is decreed by the trial Court by its judgement dated 19.09.2009 granting to the respondent No.1 – the plaintiff and the respondent No.2 each, 1/6th share in the suit schedule property without any further directions. The appellant – the defendant No.2, who did not contest the suit though she entered appearance, called in question the trial Court’s judgement in first appeal in R.A.No.71/2010 on the file of the III Additional District & Sessions Judge, D.K., Mangaluru (for short, ‘the appellate Court’).
2. This appeal was belated by 211 days, and as such, the appellant – defendant No.2 filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of such delay. The appellate Court rejected the application and consequently dismissed the appeal holding that, the appellant was not only careless and negligent in the conduct of the proceedings before the trial Court, but was also negligent in filing the appeal in time, and because she was negligent, she is unable to make out sufficient cause for condonation of the delay.
3. The appeal is admitted for consideration of the following substantial questions of law:-
a) Whether the rejection of the application for condonation of delay in filing the first appeal, and the consequential dismissal of the first appeal by the appellate Court are justified in law and in the facts and circumstances of the case.
b) What order should be made, if the appellate Court is not justified in its rejection of the application for condonation of the delay and in dismissing the appeal.
4. The learned counsel for the appellant is heard on the aforesaid substantial question of law, and though the respondents have been served, they have remained unrepresented.
5. The learned counsel for the appellant submits that initially the suit in O.S.No.111/2003 was filed by the respondent No.2, and because it was generally accepted by the family members that the appellant had invested in acquiring the property and putting up construction, the appellant intervened and it was informally settled that the respondent No.2 would withdraw the suit. The appellant bonafide believed such assurance, but she was not aware that the original defendant No.3 - respondent No.1 transposed himself as plaintiff and prosecuted the suit culminating in the decree as aforesaid. The appellant did not contest the suit only because of the aforesaid bonafide reasons. However, as of the date of the decree she was suffering from cancer, and was undergoing treatment in Mysuru for the same. She was not aware of the judgment by the trial Court, but on receipt of notice of final decree proceedings, she has filed the first appeal.
6. The appellant’s case is that the subject property does not as on today measure 12.05 cents because ½ of cent is taken over for the purposes of road widening. The appellant funded both the purchase of the site and the construction put up in the property in the name of the father. After his intestate demise, her mother, who would be entitled for 1/3rd share, executed a settlement deed in favour of the appellant transferring such share. The appellant thus acquired absolute title to a portion of the property comprising of the constructed area in an extent measuring 4 cents. The appellant executed a settlement deed in her daughter’s favour, but ultimately, she acquired title to this portion under the deed dated 01.10.2019. None other than the appellant would be entitled for this portion of the subject property. Insofar as the remaining portion of the 8 cents in the Schedule Property each of the children, though the appellant has funded the purchase of the property and the construction, would be entitled for 1/6th share.
7. The learned counsel for the appellant submits that the appellant in support of her case for condonation of delay has produced documents to establish that she was suffering from cancer even as of the date of the trial court’s judgment and that she was under treatment. These documents have been marked as Exs.P1 to P6 and this was not contested by the respondent No.1-plaintiff. The appellate Court has also found that the appellant was suffering from cancer and was under treatment. However, the application for condonation of delay is dismissed on the ground that the appellant was not diligent in contesting the suit despite the fact that she had entered appearance through her counsel. The appellate court has not examined the reason offered by the appellant to justify her non- participation before the trial Court viz., the assurance of the original plaintiff-respondent No.2 to withdraw the suit. In fact, the appellant has also referred to another suit filed by an other brother in O.S.No.326/1996 which was actually withdrawn because of the assurance. The appellate Court should have considered these circumstances in the light of the settled law that the Courts must take a liberal view in the matter of condonation of delay when sufficient cause is shown.
8. It is settled law that the Courts, while considering the application for condonation of delay, cannot take a technical approach and will have to assess pragmatically the reasons assigned to show cause for the delay in the context of each given case. If the courts, on such appreciation of the cause shown, are of the considered view that the delay is bonafide and not intentional, must take a liberal view. A useful reference could be made in this regard to the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported in (1987) 2 SCC 107 which is relied upon by the learned counsel for the appellant, as well as the later decision of the Hon’ble Supreme Court in Esha Bhattacharjee Vs. Managing Director of Raghunathpur Nafar Academy reported in (2013) 12 SCC 649.
9. In the present case, it is rather undisputed that the appellant, even on the date of the judgement by the trial Court, was suffering from cancer and she has continued to be under treatment. It is also undisputed that the appellant’s another brother filed the suit in O.S.No.326/1995, which is withdrawn. Further it is also undisputed that, the plaint in O.S.No.111/2003 initially was filed by the respondent No.2 and the respondent No.1 was arrayed as the defendant No.2. The respondent No.1 transposed himself as plaintiff and respondent No.2 was transposed as the defendant No.2. The different transactions referred to by the appellant are vide registered documents. The suit is decreed by the trial Court on the ground that it was uncontested.
10. In the aforesaid facts and circumstances of the case, this Court is of the considered view that the reasons assigned by the appellant for her non-participation before the trail Court is bonafide, and if the appellant is able to show that her non-participation before the trial Court was bonafide, the cause shown for delay in filing the appeal should also be accepted as bonafide and sufficient. The appellate court has taken a very technical approach without considering the fact that the appellant was undergoing treatment for cancer even at the time of judgment and all the circumstances which are peculiar to the case. As such, the impugned judgment is contrary to law, and is made ignoring the material undisputed facts. Further, the suit has not been decided on merits. In the peculiar facts and circumstances, and because of the indisputable objective in law that the disputes, especially disputes in relation to rights to immovable properties, should be adjudicated on merits, the trial Court’s judgment is also set aside. As such, the substantial questions of law are answered in favour of the appellant and the following:
ORDER a. The appeal is allowed in part. The judgement and decree in R.A. NO.71/10 on the file of the III Additional District and Sessions Judge, D.K.Mangaluru is set aside allowing the application for condonation of delay and the judgement and the decree in the suit in O.S.No.111/2003 on the file of the II Additional Civil Judge (Sr. Dn.), Mangaluru.D.K is also set -aside and is restored for fresh adjudication on merits with opportunity to the parties to complete their pleadings and lead evidence.
b. The appellant shall appear before the trial Court on 11.11.2019 either in person or through her counsel without further notice, and the notice of the restored suit also be caused on the respondents at the cost of the appellant.
c. The trial Court is directed to dispose of the suit as expeditiously as possible, but within an outer limit of Nine months from the date of the first hearing as aforementioned, and the parties shall assist the Court for such expeditious disposal without seeking unnecessary adjournments.
Sd/- Judge KPS