IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 1071 of 2019 (PAR) Between:
1. SMT. HANUMAKKA WIFE OF LATE NAGARAJAPPA AGED ABOUT 67 YEARS.
2. SRI GURUSWAMY SON OF LATE NAGARAJAPPA AGED ABOUT 44 YEARS.
APPELLANTS 1 AND 2 ARE RESIDENTS OF JAGALUR GOLLARAHATTI VILLAGE JAGALUR TALUK – 577 528.
3. SMT. MEENAKSHI WIFE OF PRABHU DAUGHTER OF LATE NAGARAJAPPA AGED ABOUT 49 YEARS RESIDENT OF ONKARESHWARA BADAVANE NEAR JANATHA SAW MILL JAGALUR TOWN DAVANGERE DISTRICT – 577 528.
4. SMT. RATHNAMMA WIFE OF MANJANNA DAUGHTER OF LATE NAGARAJAPPA AGED ABOUT 38 YEARS RESIDENT OF HULIKERE VILLAGE, KUDLIGI TALUK BELLARY DISTRICT – 583 135.
5. SMT. GAYATHRAMMA WIFE OF NAGARAJ DAUGHTER OF LATE NAGARAJAPPA AGED ABOUT 37 YEARS RESIDENT OF CHITRAYYANAHATTI CHALLAKERE TOWN CHITRADURGA DISTRICT – 577 522.
6. SMT. INDIRAMMA WIFE OF RUDRAMANI DAUGHTER OF LATE NAGARAJAPPA AGED ABOUT 34 YEARS RESIDENT OF JAGALUR GOLLARAHATTI JAGALUR, DAVANAGERE DISTRICT – 577 528 ... APPELLANTS (BY SRI. A.C. BALARAJ., ADVOCATE FOR SRI. GURUDHATTA. K., ADVOCATE ) And:
1. SMT. HANUMAKKA WIFE OF LATE G. K. GURAPPA @ SANNA GURAPPA AGED ABOUT 70 YEARS AGRICULTURIST.
2. SRI GURUSWAMY SON OF LATE G. K. GURAPPA @ SANNA GURAPPA AGED ABOUT 47 YEARS DRIVER AND AGRICULTURIST.
3. SRI NAGARAJA SON OF LATE G. K. GURAPPA @ SANNA GURAPPA AGED ABOUT 44 YEARS AGRICULTURIST.
4. SRI JAGADEESHA SON OF LATE G. K. GURAPPA @ SANNA GURAPPA AGED ABOUT 40 YEARS.
ALL ARE RESIDENTS OF JAGALUR GOLLARAHATTI JAGALUR TALUK DAVANGERE DISTRICT – 577 528.
5. SMT. GIRIJAMMA WIFE OF CHANDRAPPA DAUGHTER OF LATE G. K. GURAPPA @SANNA GURAPPA AGED ABOUT 52 YEARS RESIDENT OF BHADDURGHATTA VILLAGE BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DISTRICT – 577 501.
6. SMT. RATHANAMMA WIFE OF OBANNA DAUGHTER OF LATE G. K. GURAPPA @ SANNA GURAPPA AGED ABOUT 49 YEARS RESIDENT OF BHADDURGHATTA VILLAGE BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DISTRICT – 577 501.
7. SHIVAMMA WIFE OF JAGADEESH DAUGHTER OF LATE G. K. GURAPPA @SANNA GURAPPA AGED ABOUT 45 YEARS RESIDENT OF MUKKAMBUDI CHALLAKERE TALUK CHITRADURGA DISTRICT.
... RESPONDENTS (BY SRI.SUNEEL S. NARAYAN, ADVOCATE FOR C/R1 TO R7) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC AGAINST THE ORDER DATED 22.04.2019 PASSED ON IA NO.1 RA.NO. 22 OF 2019 ON THE FILE OF THE PRL.DISTRICT AND SESSIONS JUDGE, DAVANAGERE DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 17.04.2018 PASSED IN OS.NO.98 OF 2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgement Heard the learned counsel for the parties and perused the impugned judgement in R.A.No.22/2019 on the file of the Principal District and Sessions Judge, Davanagere.
2. This appeal is filed by the defendants in O.S.No.98/2017 on the file of the Principal Senior Civil Judge, Davanagere. The suit in O.S.No.98/2017 is filed for partition, and the same is decreed by the trial Court by its judgement dated 17.04.2018. The appellants-defendants, being aggrieved by this judgement, have preferred regular first appeal in R.A.No.22/2019 on the file of Principal District and Sessions Judge, Davanagere. But their appeal being belated by about nine months, the appellants have filed an application for condonation of delay under Section 5 of the Limitation Act, 1963.
3. The appellants in support of this application for condonation of delay contended that post the judgement by the trial Court, the elders in the village interceded and advised the appellants not to initiate any precipitative proceedings as they would intervene and bring about a quietus. The appellants pursued with the elders of the village, but they took some time. In the meanwhile the appellant No.1 fell ill, and the other appellants were pre- occupied in looking after the appellant No.1. The appellants are from the rustic background and they bona fide believed that there could be quietus at the intervention of the elders in the village. As such, there is delay in filing the appeal. The appellate Court has dismissed the application filed for condonation of delay, and consequentially the appeal, on the ground that the appellants had to explain each day’s delay, and the reasons assigned by the appellants do not explain each day’s delay.
4. The learned counsel for the appellants submit that it is settled law that the Court must have take a liberal approach in scrutinizing the reasons for the delay, and if a pedantic approach is taken by the Court in assessing the reasons for the delay, meritorious matters could be kept out of the threshold. The principle that every day’s delay must be explained cannot be viewed technically and must be applied in a rational and pragmatic manner. The appellate Court has not thus examined the reasons assigned by the appellants for the delay, and the application for condonation is perfunctorily rejected dismissing the appeal on the ground that each day’s delay is not explained.
5. The learned counsel for the respondents on the other hand contends that the appellants’ cannot dispute that even before the initiation of the appeal by them in R.A.No.22/2019, the respondents had filed final decree proceedings. The appellants were served in such final decree case, but they did not contest the application for final decree. Therefore, the application filed by the respondents for appointment of Commissioner was allowed, and even the directions were issued to the jurisdictional police to extend assistance to the Court Commissioner. It is stated that at this belated stage the appellants filed the appeal in R.A.No.22/2019. The finding by the trial Court is based on the proper appreciation of the evidence on record, and the appellants do not have a case even on merits. Further, the reasons assigned by the appellants to explain the delay do not adequately explain the delay. As such, the rejection of the application for condonation of delay and the consequential dismissal of the appeal are justified.
6. In the light of the rival submissions, the following substantial question of law arises for consideration:-
“Whether the first appellate Court could have dismissed the application filed by the applicants under Section 5 of the Limitation Act,1963, without considering the reasons assigned by the appellants to explain the delay on the ground that each day’s delay is not explained specifically”.
7. The appeal is admitted for consideration of the aforesaid substantial question of law, and given the nature of the dispute in this appeal, and with the consent of the learned counsel for the parties, the appeal is taken up for the final disposal of the appeal on the aforesaid substantial question of law.
8. It is settled that the Courts cannot be either technical or perdantic in appreciation of the reasons offered by the parties who have initiated proceedings belatedly beyond the prescribed time limit. The Courts have to assess the reasons assigned to ascertain whether the delay is on account of deliberate negligence or mala fide, and subject to the caution that the person who has filed the belated appeal is diligent or not. It is equally settled that each day’s delay must be explained, but the Courts cannot be doctrinaire in applying this proposition, and the Courts will have to be pragmatic. 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 appellants, 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. The reasons assigned by the appellate Court is examined in the background of the aforesaid settled law, and it reads as follows:-
“Looking to the affidavit of the appellant No.2 it is clearly shown that the appellants are having full knowledge about the judgement and decree passed by the trial Court and the said appellants obtained the certified copies of the judgement well within time. The contention of the appellants that the elders of the village and their well-wishers assured them that they will settle the matter. Therefore, the appellants not filed the appeal well within time. In order to substantiate the said fact, the said appellants not examined a single villager to show that the conciliation proceedings were going on. It is well settled principles of law that a person who files the application for seeking the condonation of delay, he has to show each day reason for delay. But, the said appellants not only shown for the reasons each day delay and also not shown how many days delay caused in filing the appeal. There are no acceptable grounds shown by the appellants to condone the delay.”
10. It is obvious from in the aforesaid reasoning, the appellate Court has been very perfunctory and has not examined the reasons assigned as required against the touchstone referred to above. It is undisputed that the appellants-defendants and the respondents-plaintiffs are from a rural background, and it would not be strange, in a rural setting, for the elders of the village to intercede at the instance of one of the parties and try to bring about a rapprochement. The defence of the appellants is that the suit as presented is a suit for partial partition, which would be impressible in law without requisite leave under Order VIII Rule 2 of CPC, and they buttress their defence contending that two properties have been left out from the suit; one of the property is purchased in the name of the respondent No.1 and another property is allotted in the names of the deceased G.K.Gurappa and Nagarajappa. It is their case that the trial Court has not examined their defence in the light of the evidence on record. Their defence goes to the very root of the case, and would also be a question of fact that would have to be examined under section 96 of C.P.C. If the explanation offered is thus contextually examined there is no reason to conclude that appellants are not bonafide in offering the reasons for delay, or wanting in diligence.
11. The substantial question of law framed is answered in the affirmative, and the appeal is allowed setting aside the judgement and decree of the first appellate Court in R.A.No.22/2019 on the file of Principal District and Sessions Judge, Davanagere, allowing the application filed for condonation of delay and remanding this appeal for fresh consideration on merits.
The parties shall appear before the first appellate Court without further notice of first hearing on 08.10.2019.
Sd/- Judge KPS