IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 631 of 2016 (INJ) Between:
1. SRI GUNDAPPA AGED 53 YEARS, SON OF LATE SURAPPA GOWDA.
2. MS VISHALAKSHI AGED 45 YEARS, SON OF LATE SURAPPA GOWDA.
BOTH ARE R/AT UBBURU GRAMA, GUTTI YEDEHALLI POST, MANDAGADDE HOBLI, THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT – 577 226.
... APPELLANTS (BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE) And:
1. SRI U. S. JAYARAM GOWDA AGED 60 YEARS, SON OF LATE SUBBEGOWDA.
2. SRI U. J. MAHESHA AGED 35 YEARS, SON OF JAYARAM GOWDA.
BOTH ARE R/AT UBBURU GRAMA GUTTI YEDEHALLI POST, MANDAGADDE HOBLI, THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT – 577 226.
... RESPONDENTS (BY SRI B.S. PRASAD, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.11.2015 PASSED IN R.A. NO. 2/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., THIRTHAHALLI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 17.06.2013 PASSED IN O.S. NO. 124/2010 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., THIRTHALLI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendants in O.S.No.124/2010 on the file of the Additional Civil Judge & JMFC., Thirthahalli (for short, the Civil Court) calling in question the judgment and decree dated 17.06.2013 therein and the judgment and decree dated 07.11.2015 in R.A.No.2/2015 on the file of the Senior Civil Judge and JMFC., Thirthahalli (for short, the appellate Court). The suit is decreed by the civil Court granting permanent injunction in favour of the respondents restraining the appellants from interfering with the respondents’ alleged possession of land in Sy.No.16/2 measuring 12 guntas of Ubburu village, Mandagadde hobli, Thirthahalli Taluk (for short, ‘subject property’). This judgment by the civil Court is confirmed with the dismissal of the first appeal.
2. The respondents have filed the suit in O.S.No.124/2010 contending that the subject property belonged to Sri Puttappa Gowda under whom they claim title, and after the demise of Sri Puttappa Gowda, the respondent No.1 and his brothers divided the different properties, including the subject property under the partition deed dated 26.01.1977. The revenue records are made in their names.
3. The appellants contested the suit asserting that their ancestor Sri Surappa Gowda was the absolute owner of the property measuring 16 guntas in Sy.No.16/2 of the said village. He mortgaged this property under the conditional sale deed dated 30.04.1959 executed in favour of Sri U.T.Shamaiah Gowda. Sri Surappa Gowda filed suit for redemption in O.S.No.44/1985, and this suit was decreed on 14.12.1987. The appeal filed by Sri U.T.Shamaiah Gowda in R.A.No.20/1988 is dismissed. Thereafter, the appellants’ father, Sri Surappa Gowda filed execution case in E.P.No.25/1991, and the possession of the land in Sy.No.16/2, measuring 16 guntas, was delivered to him and the execution petition was subsequently closed on 08.09.1991 as fully satisfied.
4. The appellants further contended that the revenue records of the aforesaid land in Sy.No.16/2, measuring 16 guntas were made in the name of the mortgagee’s son, Sri. Jnanendra because of the aforesaid mortgage. But with possession being delivered, the appellants’ father continued in possession of the said property. In fact, the mortgagee’s son, Sri. Jnanendra filed suit in O.S.No.63/1992, and this suit is decreed. The appeal filed by the appellants in R.A.No.69/2003 was dismissed. However, the appellants called in question the judgment and decree in O.S.No.63/1992 and in R.A.No.69/2003 in the second appeal in RSA No.3112/2006, which is pending consideration.
5. The Civil Court on appreciation of the evidence on record, including the oral and documentary evidence, concluded that the respondents are able to establish title and possession and therefore, the respondents would be entitled for permanent injunction. Insofar as appellants’ defence, the Civil Court concluded that the appellants’ father, Sri Surappa Gowda may have made a mistake in mentioning the Sy.No.16/2 when he executed the conditional sale deed in the year 1959, and therefore, the appellants cannot rely upon the proceedings between their father and Sri U.T.Shamaiah Gowda or his son.
6. The appellants being aggrieved by the civil Court’s judgment, filed the first appeal in R.A.No.2/2015 before the first appellate Court, but the appeal was belated by 18 months and as such, the appellants filed an application for condonation of delay. The appellate Court by its impugned judgment has dismissed this application and consequentially, the first appellate. As such, this second appeal. In the light of the rival submissions, the substantial question that arises for consideration is:-
“Whether the appellate Court, in the facts and circumstances of the case, is justified in rejecting the rejection of the application filed by the appellants under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal.”
7. The appellant No.1 has filed an affidavit in support of the application under Section 5 of the Limitation Act, 1963 for condonation of delay. As recorded by the appellate Court in the impugned judgment, the appellant No.1 has stated that he is not acquainted with the judicial proceedings, and he was unwell during the relevant period of time. He is diabetic, and at the relevant point of time, he was suffering from jaundice. Thus being constrained both because of ill health and the lack of knowledge, the appellants could not file the appeal in time. The appellant No.1 has examined himself as PW.1 in support of the application, and he has been cross examined.
8. The appellate Court has opined that the response of the appellant No.1 discloses that the suit before the civil Court was hotly contested and therefore, the appellant No.1 could not have denied immediate knowledge of the civil Court’s judgment. The appellate Court has also opined that the delay in filing the appeal being substantial, the appellants have not substantiated the reason inasmuch as the appellants did not place any documentary proof thereof. Further, the appellant No.1 has admitted that he was not hospitalized during the relevant period of time, and the appellants have not explained each day’s delay. The aforesaid circumstances, the appellate Court has opined, show that the appellants have not established sufficient cause for condonation of delay.
9. It is settled law that the Courts cannot take a pedantic approach while considering applications filed under Section 5 of the Limitation Act, 1963, and the Courts must pragmatically consider the reasons offered to ascertain whether the delay is vitiated by malafide. If the reasons offered are bonafide and possible, and if no third party rights are created during the delay period, the courts must consider the reasons offered wholistically lest the adjudication of rights to immovable properties on merits is kept out. In the present case, as stated supra the appellants, and their predecessor-in-title, have been adjudicating for securing the rights to the land in Sy.No.16/2 measuring 16 guntas of Ubburu village, Mandagadde hobli, Thirthahalli Taluk. In fact, their dispute with the legal representatives of the person in whose favour the conditional sale deed was executed way back in the year 1959 is pending consideration in RSA No.3112/2006. If the reasons assigned by the appellants for condonation of delay are examined in the light of the aforesaid circumstances, and the settled law adverted to above, this Court is of the considered opinion that it will have to be concluded that the appellate Court has been too technical in rejecting the application on the ground that the medical records are not produced, each day’s delay is not explained and the appeal is belated by about 18 months. Therefore, the substantial question formulated is answered accordingly and consequentially, the impugned order requires to be set aside with the appeal being restored to the board of the appellate Court for adjudication on merits. As such, the following ORDER:-
The appeal is allowed in part, and the impugned judgment and decree dated 07.11.2015 in R.A.No.2/2015 on the file of the Senior Civil Judge and JMFC., Thirthahalli is set aside. The appeal is restored to the file of the first appellate Court for re-consideration of the appeal on merits. The appellate Court shall expeditiously dispose of the appeal, but with an outer limit of five months from the date of the first appearance. The appellants and respondents shall appear before the first appellate Court without notice of further hearing on 06.01.2020.
Sd/- Judge KPS