IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 65 OF 2016 BETWEEN:
SRI H. B. SHIVALINGAIAH AGED ABOUT 49 YEARS SON OF LATE BETTAIAH R/AT HOLALU VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 402.
(BY SRI. N THEJESH., ADVOCATE) AND:
1. SMT. B. K. JAYALALITHA AGED ABOUT 56 YEARS WIFE OF POLICE CONSTABLE DOLLAIAH R/AT HOLALU VILLAGE, DUDDA HOBLI MANDYA TALUK – 571 402.
... APPELLANT 2. HOLALU GRAM PANCHAYATH HOLALU, DUDDA HOBLI MANDYA TALUK BY ITS SECRETARY – 571 402.
(BY SRI.L. RAJA., ADVOCATE FOR R-1; NOTICE SERVED ON R-2) ... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.
100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.02.2015 PASSED IN R.A. NO. 3/2014 ON THE FILE OF THE PRL. SR. CIVIL JUDGE AND CJM., MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.09.2013 PASSED IN O.S. NO. 222/2006 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., MANDYA.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the plaintiff in O.S.No.222/2006 on the file of the Additional Civil Judge and JMFC, Mandya calling in question the judgment dated 2.9.2013 whereby, the appellant’s suit for permanent injunction against the respondents is dismissed. The first appeal by the appellant in R.A.No.3/2014 on the file of the Principal Senior Civil Judge and CJM, Mandya is also dismissed by the impugned judgment dated 18.2.2015.
2. Heard the learned counsel for the appellant and the respondents, and perused the impugned judgments and decree.
3. The appellant’s case is that the suit schedule property, a residential house, is his ancestral property and his ancestors constructed the residential premises about 150 years back. The respondent No.1, who is the owner of the adjacent property, has colluded with the officers of the respondent No.2, and fabricated revenue records with altered measurements of her property and obtained a building license for construction. The respondent No.1 based on such documents is trying to interfere with the appellant’s possession of the suit schedule property. Therefore, the cause of action for the suit for permanent injunction. The respondent No.1 has asserted that she is the owner of the property measuring east to west 17 feet and north to south 18 feet and she has obtained requisite licence from the authorities for construction after demolition. The respondent No.1/defendant No.1 has contended that the dispute is because the appellant is claiming 2½ feet wide area in excess of what she would otherwise own.
4. The civil Court while was considering the Issues that require the appellant to prove his lawful possession and enjoyment of suit schedule property and interference by the respondents, has, based on the evidence on record, concluded that the appellant is not able to establish either the boundaries or the measurements of the property. The civil Court has also concluded that the case of the respondent No.1 is corroborated by the report of the Commissioner who is appointed at the instance of the respondent No.1. Consequentially, the Civil Court has dismissed the suit.
5. The appellant, being aggrieved by such judgment filed his first appeal in R.A.3/2014. However, this appeal was belated by 3 months and 21 days. As such, he filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay. The appellate Court took up simultaneously both the application for condonation of delay and the appeal for consideration on merits. In fact, the appellant also filed an application under Rule XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. The appellate Court took up even this application for consideration simultaneously. The appellate Court has framed four points for determination that relate to whether the appellant is able to establish grounds for allowing two applications viz., the application for condonation of delay and the application for temporary injunction and whether he is able to demonstrate that the impugned judgment is perverse or capricious.
6. The appellant in support of his case for condonation of delay, contended that he hails from poor strata of the society and he could not file the appeal in time because, at the relevant point of time, he was suffering from jaundice, and was bed- ridden for a substantial period of time. He could not make arrangements for meeting litigation expenses. Further he has also stated that being uneducated he was not familiar with the law of limitation.
7. The appellate Court has concluded that the reasons offered by the appellant are not bona fide and the delay cannot be accepted without being corroborated by the written document. The explanation is general and omnibus and the appellant does not explain the delay of each day. After thus answering the first of the points for determination, the appellate Court has taken up the appeal for consideration on merits, and has concluded that the trial court’s judgment is in accordance with law and does not call for any interference.
8. The learned counsel for the appellant arguing in support of the appeal, has proposed the following as a substantial question of law – “Whether the first appellate Court has committed any serious legal error in dismissing the appeal on the point of limitation as well as on merits.” The learned counsel has relied upon a decision of this court in RSA No.1329/2014 which is decided on 17.12.2015 to persuade this Court to answer this question of law in favour of the appellant. The learned counsel, relying upon this decision, emphasised that one of the salutary principle in law is that the Courts must, as a matter of condition precedent, first take up the application for condonation of delay, and if the delay is condoned, the appeal should be taken up for decision on merits with liberty to both the parties to argue their case. The appellant Court has violated this salutary principle of the law and therefore, the appellate Court’s judgement cannot be sustained.
9. The learned counsel for the respondent No.1 – contesting respondent is heard on the proposed substantial question of law. The learned counsel does not dispute the proposition of law canvassed by the learned counsel for the appellant but he contends that the appellant is not bona fide in offering the explanation for the delay in filing the first appeal. The appellate Court has therefore rightly appreciated and rejected the application under Section 5 of the Limitation Act while also dismissing the appeal. The appellant, who has not offered sufficient reasons for condonation of delay, cannot be aggrieved because both the application for condonation of delay and appeal are taken up together. Therefore, the learned counsel for the respondent No.1 submits that there is no miscarriage of justice in the appellate court taking up both the IA Nos.1 and 2 and the appeal for consideration on merits.
10. This court in RSA No.1329/2014 decided on 17.12.2015 has held as follows:
“But it is a condition precedent for the courts to condone the delay in order to entertain the case on merits and to hear the appeal on merits. Here, the First Appellate Court has ignored this principle and dismissed the limitation application and simultaneously gave finding on the merits of the appeal which is erroneous which cannot be legally accepted.”
This proposition is not seriously contested, and would be squarely applicable in the circumstances of this case. Therefore, the substantial question will have to be answered in favour of the appellant.
11. This takes us to the next question viz., “whether the appellate Court has considered the question of delay in the light of the settled principles of law.” Insofar as the condonation of delay, it has been reiterated by the Hon’ble Supreme Court that the Courts cannot take a pedantic approach and the reasons offered will have to be assessed to ascertain whether the delay is because of lack of diligence or is vitiated by mala fides, and generally, adjudication of a dispute on merits should not be kept out on ground of delay unless the person seeking condonation of delay is mala fide in belatedly approaching the court or third party rights have been created in the interregnum. A useful reference may be made to the decision of the Hon’ble Supreme court in Esha Bhattacharjee vs. Managing Committee, Raghunathapura Nafar Academy, (2013) 12 SCC 649.
12. The appellant, in support of the application for condonation of delay has stated that he was not keeping well and he was in fact suffering from Jaundice. He was confined to bed and he had difficulties in mobilizing funds required for filing of the appeal. He hails from poor rural background. The delay in filing the appeal is about 100 days. The Court could not have disbelieved the appellant only because medical records were not produced if the circumstances otherwise vindicated his case for condonation of delay. The respondent No.1 does not contest that any right is created in the interregnum. This Court is of the considered opinion that in the circumstance pleaded, the reasons offered to explain the delay is sufficient, and the appellate Court has erred in dismissing the appeal without condoning the delay. If the appellate Court could not have considered the appeal on merits without first condoning the delay in filing the appeal, its finding on merit would be without would be without jurisdiction. Therefore, it would be appropriate for this Court to allow the appeal in part and set aside the impugned judgment and decree by the appellate Court allowing the application filed by the appellant for condonation of delay restoring the first appeal for reconsideration on merits. It is observed that the appellate Court shall reappreciate the evidence on record and decide the appeal on merits without being influenced by its findings in the impugned judgment. As such, the following order:
The appeal is allowed in part. The judgement rendered in R.A.No.3/2014 dated 18.2.2015 by the Principal Senior Civil Judge and CJM, Mandya is set aside. The application for condonation of delay in filing the first appeal in R.A.No.3/2014 is allowed, and the appeal is restored for reconsideration in accordance with law. The parties shall without further notice appear before the first appellate court on 9.12.2019. The appellate Court shall dispose of the appeal on merits in the light of the observations made herein as expeditiously as possible, but within an outer limit of five months from the date of first appearance.
SD/- JUDGE nv ct.sr