IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.342 OF 2016 (dec) Between:
SMT. RAVANAMMA WIFE OF SRI NARAYANASWAMY AGED ABOUT 34 YEARS R/A BEHIND PANCHAYATH OFFICE GANTAMAVARIPALLI KASABA HOBLI BAGEPALLI TALUK CHIKKABALLAPUR DISTRICT – 561 207.
(BY SRI. B. RAVINDRANATH., ADVOCATE) And:
SRI A. S. SRINIVASA MURTHY SON OF LATE SUBBARAYA SHETTY AGED ABOUT 65 YEARS R/A PATHAPALYA BAGEPALLI TALUK CHIKKABALLAPUR DISTRICT.
(BY SRI. G.R. LAKSHMIPATHY REDDY., ADVOCATE) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST ORDER DATED 07.01.2016 ORDER ON IA.NO.1 PASSED IN RA.NO. 24/2014 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE CHICKABALLAPUR., DISMISSING THE IA.NO.1 FILED AGAINST THE JUDGMENT AND DECREE DATED 19.12.2013 PASSED IN OS. NO. 240/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & CJM., CHIKKBALLAPUR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant in O.S.No.240/2007 on the file of the Senior Civil Judge and CJM, Chikkaballapura (for short, ‘the civil Court’) calling in question the judgment and decree dated 19.12.2013 therein and the order dated 07.01.2016 in RA No.24/2014 on the file of the I Additional District and Sessions Judge, Chikkaballapura (for short, ‘the appellate Court’).
2. The civil Court has decreed the respondent’s suit declaring the respondent as the absolute owner of the properties described in the plaint schedule ‘A’ and ‘B’ and directing the appellant to quit and deliver the encroached portion of the property described in schedule ‘B’, which is referred to as schedule ‘C’ property to the respondent. The appellant called this judgment and decree in RA No.24/2014. However, this appeal was belated and therefore, the appellant filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay. The appellate Court by its order dated 7.01.2016 has rejected the application and consequentially the appeal.
3. The respondent filed the suit in O.S.No.240/2007 initially for declaration and permanent injunction in respect of two adjacent properties described as bearing house list Nos.264 and 265 of Gantamvaripali village, Kasaba Hobli, Bagepalli Taluk - the suit schedule ‘A’ and ‘B’ properties. However, the respondent amended the plaint to include the relief of mandatory injunction to handover vacant possession of a portion of the property bearing No. 265 (described as schedule ‘C’) asserting that the appellant unlawfully, after the initiation of the suit and during the Court vacation, encroached the disputed property and later completed the construction and occupied the same. The respondent asserted that he purchased the schedule ‘A and ‘B’ properties in three portions under the three sale deeds executed by his vendor Sri Siddlingareddy and his son Sri G.S.Narasimhareddy.
4. The appellant resisted the suit asserting that she purchased the property adjacent to the respondent’s properties under the sale deed executed by Smt. V. Lakshmidevi who is none other than the wife of the respondent’s vendor – Sri Siddalingareddy. The appellant also asserted that the concerned panchayath granted this property in favour of Smt. Haseenabi who transferred the same in favour of Smt. V. Lakshmidevi under the sale deed dated 12.3.1996. As regards the disputed property, and the alleged encroachment, the appellant, denying the assertion that she had encroached upon the same after the initiation of the suit and during the Court vacation, asserted that she has obtained the license dated 12.3.2007 for construction of the building and put up construction in her property. She is in possession of the construction in her own right as the absolute owner.
5. The respondent examined himself as PW.1 and also produced documents. Further, at the respondent’s instance, a Court Commissioner was appointed who has filed his report on 6.7.2013 stating that the appellant had encroached a portion of the property in house list bearing No.265. The civil Court decreed the suit because appellant had neither chosen to cross examine the respondent nor lead any contra evidence, and also because the appellant had not contested the Court Commissioner’s report.
6. In the appeal filed by the appellant belatedly, the appellant has stated, as a matter of explaining the delay in filing the appeal, that the appellant did not contest the suit because the elders in the village intervened and held a panchayath for brokering a settlement, nevertheless the respondent has continued the dispute. The appellate Court has refused to accept the reason stating that the appellant is protracting the proceedings, and if any lenience is shown, the tendency to protract the proceedings among the general public would increase.
7. The learned counsel for the appellant proposes the following substantial questions of law for consideration:
(1) Whether the appellate Court is justified in rejecting the application filed by the appellant under section 5 of the Limitation Act, 1963, and consequentially the appeal, without considering the specific reason furnished to explain the delay and for the reason that a lenient approach cannot be taken because that would encourage the general litigant public to protract the proceedings.
(2) If the appellate court is not justified in rejecting the application filed under section 5 of the Limitation Act, 1963, given the facts and circumstances of the case, what would be the appropriate order.
The learned counsel for the appellant and the learned counsel for the respondent have been heard with their consent on the aforesaid questions, and the appeal is taken up for final disposal.
8. The appellant’s first appeal is belated by 270 days and in support thereof, it is stated by the appellant that she did not contest the suit before the civil Court, nor file the appeal in time, only because the elders in the village intervened and convened a panchayath. The appellant and respondent were advised to amicably resolve the dispute. The appellate Court has dismissed the application without considering the merits of such reason. The appellate Court has reasoned that the tendency amongst the litigants is to prolong the proceedings and such tendency needs to be curbed. The appellate Court should have examined the merit of the specific reason to ascertain whether the cause shown by the appellant was sufficient for condonation of delay. The appellate Court could not have rejected the application for the general reason that there is an increasing tendency to file belated appeals. Even if the appellate Court felt that the reason assigned for condonation of delay is false, and the belated appeal is part of the general tendency observed by it, it should have extended appropriate opportunity to the appellant to examine herself in support of the reason with the opportunity to the respondent to cross examine her. As such, the appellate Court’s order cannot be sustained in law.
9. Further, the Hon’ble Supreme Court in the case of Esha Battacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others reported in (2013) 2 SCC 649 has held that the courts cannot consider the question of delay pedantically and the courts must always examine the reasons assigned pragmatically to ascertain the bona fides and make effort to decide the case on merits. The relevant part of the decision of the Hon’ble Supreme Court in the aforesaid case reads as under:
“21.1 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.
21.2 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.
21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4 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.
21.5 Lack of bana fides imputable to a party seeking condonation of delay is a significant and relevant fact.”
10. If the circumstance pleaded by the appellant is examined in the light of this exposition, this Court is of the considered view that the appellate Court is not justified in dismissing the application on the ground that it would be in the interest of general public to dismiss the application with a message that the Court must not be lenient. In the circumstances of the case, neither the intervention by the elders in the village nor advice for an amicable resolution could be construed as improbable. There is nothing on record to doubt the appellant’s bona fides. Therefore, it could be reasonably held that the appellant is able to satisfactorily explain not only the non-participation before the civil Court but also the delay in filing the first appeal.
11. The rival claims, as they emerge from the respective pleadings, and the evidence of the respondent, are because the respondent asserts that a portion of constructed area is encroached by the appellant and the appellant claims the title thereto as part of the property purchased under the registered sale deed executed by Smt.
V. Lakshmidevi who is the wife of the vendor of the respondent, Sri Siddalingareddy. The civil Court has decreed the suit accepting the evidence on behalf of the respondent essentially on the ground that the evidence is unchallenged and the Commissioner’s report is uncontested by the appellant despite having filed the written statement. In the light of the civil Court’s reasoning, and the reason offered for failure to effectively contest the suit and for the condonation of delay in filing the first appeal being accepted, it would be just and proper to set aside the impugned order and judgement and restore the suit for re-adjudication on merits with opportunity to the appellant to cross examine PW.1 and to lead evidence, and corresponding opportunity to the respondent also to lead further evidence. Therefore, the following:
ORDER (i) The appeal is allowed in part.
(ii) The order dated 7.1.2016 in RA No.24/2014 on the file of the I Additional District and Sessions Judge, Chikkaballapur and the judgment and decree dated 19.12.2013 in O.S.No.240/2007 on the file of the Senior Civil Judge and CJM, Chikkaballapura are set aside, The suit in O.S.No.240/2007 on the file of the Senior Civil Judge and CJM, Chickballapur, is restored for re-adjudication on merits with an opportunity to the appellant to cross examine PW.1 and lead evidence with liberty to the respondent also to lead any further evidence.
(iii) The suit shall be disposed as expeditiously as possible but within an outer limit of six months from the date of first appearance.
(iv) The appellant and the respondent shall appear before the civil Court without further notice of first hearing on 13.01.2020.
SA Ct:sr Sd/- Judge