IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.2242 OF 2018 Between:
K. M. Boregowda S/o Late Mallegowda, Aged about 63 years, R/at Kodavthi Village, Huliyurdurga Hobli, Kunigal Taluk, Tumakuru District-572 101. ... Appellant (By Sri. Harisha A.S., Advocate) And:
1. Sunandamma W/o Late K.K. Kempaiah, Aged about 55 years, 2. Dharmendra S/o Late K.K. Kempaiah, Aged about 36 years, 3. Smt. Vani W/o Ashok, Aged about 33 years, All are R/at Ulagalawadi, Koppa Hobli, Madduru Taluk, Mandya District-571 401. ... Respondents (By Sri. G.B. Nandish Gowda, Advocate for Sri. R.B. Sadashivappa, Advocate for R1 to R3) This Regular Second Appeal is filed under Section 100 of CPC against the order dated 21.08.2016 passed on I.A.No.1 in R.A.No.51/2015 on the file of the Senior Civil Judge and JMFC., Kunigal, dismissing I.A.1 and consequently dismissing the appeal filed against the judgment and decree dated 28.01.2015 passed in OS No.50/2007 on the file of the Addl. Civil Judge and JMFC Kunigal.
This Regular Second Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the impugned judgments.
2. This appeal is filed by the plaintiff in O.S.No.50/2007 on the file of the Additional Civil Judge and JMFC, Kunigal (‘the trial Court’ for brevity). The appellant has filed this suit for specific performance of the agreement of sale deed dated 30.08.2000 asserting inter alia that Sri. K.K.Kempaiah (the undisputed owner of the subject property) has executed this agreement in his favour and he is put in possession of the subject property in part performance of this agreement of sale. The respondents, while not disputing that they are the legal representatives of Sri. K.K.Kempaiah, contested the suit asserting that the suit is barred by limitation and the suit is an effort to stake a false claim to the suit property. The respondents referred to an inter se suit for partition in O.S.No.331/1990 and certain other suits, including the suit in O.S.No.51/2006.
3. The trial Court framed separate Issues as regards the appellant proving the due execution of the sale agreement dated 30.08.2000, his ready and willingness to perform his part of the contract and his right to seek specific performance. The trial Court concluded in favour of the appellant as regards the due execution of the sale agreement dated 30.08.2000 as well as his ready and willingness to perform his part of the contract. However, the trial Court, while considering Issue No.3, opined that the appellant would not be entitled for specific performance and he should be only granted the relief of refund of the advance sale consideration paid along with the interest at the rate of 9% per annum from the date of agreement till realization. The trial Court accordingly decreed the suit by its judgment dated 28.01.2015.
4. The appellant has impugned the trial Court’s judgment in R.A.No.51/2015 on the file of the Senior Civil Judge and JMFC, Kunigal (‘the appellate Court’ for brevity) insofar as the refusal of the specific performance. Further, this appeal being belated, the appellant has filed an application for condonation of delay. The appellate Court by the impugned judgment dated 21.08.2016 has dismissed the application filed under Section 5 of the Limitation Act, 1963 and consequently, the appeal. The appellate Court has rejected the application for condonation, and consequentially the appeal, essentially on three grounds viz., a) The actual delay in filing the appeal was 217 days, but the appellant had counted the delay as 174 days.
b) The appellant, who had contended that because of his ill-health he could not file the appeal in time, had not produced any medical evidence on record to establish the same.
c) The appellant was trying to take advantage contending that he was aged 60 years. However, the records indicate that he was only 58 years.
The appellate Court has rejected the application on the aforesaid grounds despite observing that it is settled law that the Courts should take liberal approach while dealing with the applications filed for condonation of delay in civil matters.
5. The following substantial question of law arises for consideration:
“Whether the appellate Court has rightly applied the law on condonation of delay in considering the appellants’ application under Section 5 of the Limitation Act, 1963 for condonation of delay”
The learned counsel for the appellant and the learned counsel for the respondents, with their consent, have been heard on the substantial question of law for final disposal.
6. As regards the law on how an application under Section 5 of the Limitation Act, 1963 should be considered, it would be useful to refer to the decision of the Hon’ble Supreme Court in the case of Esha Bhattacharjee v/s Managing Committee of Ragunathpur Nafar Academy and Others reported in (2013) 12 Supreme Court Cases 649, and the exposition of the law in this regard by the Supreme Court reads as follows:
“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.
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.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
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.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public 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.
vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
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.
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.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
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.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
xvii) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a nonchallant manner requires to be curbed, of course, within legal parameters.”
7. It is obvious from this exposition that the Courts must take a pragmatic approach and consider the reasons assigned for condonation of delay in the context of a particular case eschewing a pedantic or a technical approach and in the light of the salutary objective in law to decide real disputes on merits. The appellate Court’s consideration of the reasons assigned as mentioned supra would be, in the considered opinion of this Court, too technical. The evidence of the appellant, who is examined as PW.1 before the appellate Court in support of the application demonstrates that after the trial Court’s judgment on 28.01.2015, he submitted an application for certified copy on 02.02.2015 i.e., within a period of four days. The certified copy of the judgment is given to him on 12.02.2015, and the appeal is filed on 13.10.2015, which is after 217 days. Though the appeal is filed after a lapse of 217 days from the date of receipt of certified copy of the trial Court’s judgment, the appellant would be entitled to the time allowed to him in law to file the appeal viz., the prescribed limitation period, and also the exclusion of the time taken for preparing certified copies. This aspect of the matter has not been considered. Further, it is undisputed that the appellant hails from rural background. The appellant, ailing from a rural background, has described himself as being 60 years as on the date of the appeal before the appellate Court. The appellate Court, on considering the age as mentioned in the plaint has deduced that the appellant was aged 58 years and not 60 years. This is considered as one of the circumstances to refuse condonation of delay. The error in mentioning the age, if any, in the circumstance of the parties and in nature of dispute, could not have been very material. The essential question is, whether the appellant is bonafide in stating that he was suffering from ill-health and such ill-health prevented him from filing the appeal in time. The appellate Court has held against the appellant only on the ground that he has not produced medical certificate to establish ill- health and that the appellant was prevented by such ill- health from filing the appeal in time.
8. The reasons assigned by the appellant will have to be considered in the context as stated above, and given the status of the parties and a delay of six months, it cannot be reasonably concluded that the delay is inordinate or vitiated by malafides. In the considered opinion of this Court, nor would the delay justify keeping out adjudication of the dispute on merits. Therefore, the substantial question is answered accordingly and the following order:
ORDER The appeal is allowed in part. The appellate Court’s judgment in R.A.No.51/2015 to the file of the Senior Civil Judge and JMFC, Kunigal is set aside allowing I.A.No.1/2015 filed for condonation of delay accepting the cause shown. The appeal in R.A.No.51/2015 is restored to the board of the appellate Court for adjudication of merits.
The parties shall appear before the appellate Court without notice of first hearing on 18.11.2019, and further, the parties shall assist the appellate Court in expeditious disposal of the case without seeking unnecessary adjournments. The appellate Court shall dispose of the appeal on merits as expeditiously as possible within an outer limit of six months from 18.11.2019.
Sd/- Judge RB