Judgment:
(Prayer: This RSA is filed under Section 100 of C.P.C. praying to set aside the order dated 11.2.2014 passed by the III ADDL. Senior Civil Judge, HUBLI, in R.A.No.124/13, and etc.)
1. Though the matter is listed for admission, by consent of the learned Counsel for the parties to the lis, the matter is taken up for final hearing.
2. This is the defendant's second appeal against the judgment and decree dated 11.2.2014 made in R. A. No.124/2013 on the file of the III Addl. Senior Civil Judge, Hubli, confirming the judgment and decree dated 28.3.2013 made in O.S.No.35/2007 on the file of the III Addl. Civil Judge and JMFC, Hubli, decreeing the suit in-part, declaring that the plaintiff is owner of property and directed the defendants to hand-over possession of the suit schedule property to the plaintiff within three months and refused to grant the relief of mesne profits.
3. The respondents/plaintiffs filed O.S.No.35/2007 for declaration of title and for possession of the suit property and for mesne profits contending that they are the owners of the suit schedule property and produced the documents. The defendant filed written statement denying the entire plaint averments. The trial court based on the pleadings framed the following issue:
1. Whether the plaintiffs prove that they are the class II legal heirs of deceased Yallappa Ningappa Doddamani?
2. Whether the plaintiffs prove that the defendants by colluding with the revenue authorities and created the will dated 21.7.1999 saying that the said will is executed by Smt.Marevva?
3. Whether the plaintiffs prove that the defendant got entered his name in the record of rights in the year 2006 and take illegal possession of the property?
4. Whether the plaintiffs prove that they are the absolute owners of the suit property?
5. Whether the plaintiffs are entitled for the relief of declaration?
6. Whether the court fee paid by the plaintiffs is proper and correct for the purpose of court fee and jurisdiction?
7. Whether the plaintiffs are entitled for the relief of possession?
8. What order or decree?
Additional Issues:
1. Whether the defendant proves that Marewwa has executed a will on the strength of the promissory note in favour of the defendant on 9 -5-2002?
4. In order to establish plaintiffscase, the power of attorney holder is examined as P.W.1 and marked documents as Ex.P.1 to 17. The defendants examined himself as D.W.1 and examined two witnesses as DWs.2 and 3 and marked documents Ex.D.1 to D.5.
5. After considering the entire material on record, the trial court recorded a finding that the plaintiffs have proved that they are Class-2 heirs of deceased Yallappa Ningappa Doddamani and deceased Marewwa and also proved that defendant by colluding with the revenue authorities, has concocted the will dated 24.7.1999 stating that the said Will is executed by Marewwa and also held that the plaintiffs have proved that the defendant got entered his name in the revenue records in the year 2006 and taken possession illegally of the suit schedule property and the plaintiffs have proved that they are absolute owners of the suit schedule property and they are entitled to relief of declaration and possession. Accordingly, the suit came to be decreed.
6. Against the said judgment and decree, the defendants filed appeal in R.A.No.124/13 along with the application under Section 5 of the Limitation Act to condone the delay in filing the appeal, before the III Additional Senior Civil Judge, Hubli, who after hearing on the application for condonation of delay dismissed the application and consequently dismissed the appeal.
7. Against the said judgment and decree of the courts below, the present appeal is filed.
8. I have heard the learned Counsel for the parties to the lis.
9. Sri.Prakash Andanimath, learned Counsel for appellant has contended that both the courts below have not considered the case of the defendant and the oral and documentary evidence produced by the plaintiffs has decreed the suit which has resulted injustice to the appellant. He also contended that the lower appellate court without considering the case on merits has dismissed the appeal only on the ground of delay without considering the fact that the appellant was not well and he has produced the material documents to prove that there is sufficient reason for the delay in filing the appeal. Therefore, he sought to set aside the judgment and decree of the lower appellate court in order to provide an opportunity to appellant/defendant to putforth his case on merits.
10. Per contra, Sri Sunil S. Desai, the learned Counsel for respondents 1 to 3 sought to justify the impugned judgment and decree of the appellate court and contended that there is a delay of 126 days in filing the appeal and the appellant has not produced any material document and not assigned any sufficient reasons to condone the delay. Therefore, he sought to dismiss the appeal and justified the impugned judgment and decree of the lower appellate court.
11. This Court while admitting the above appeal has framed the following substantial question of law for determination:
(1) Whether the lower appellate court is justified in dismissing the appeal only on the ground of delay of 126 days in filling the appeal?
12. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties to the lis.
13. It is not in dispute that the present respondents have filed the suit for declaration of title and for possession and for mesne profits in respect of the immovable property bearing Sy.No.96A/1 measuring 1 acre 13 guntas of Mavanur village, Chabbi hobli, Hubli Taluk and after contest the trial court decreed the suit in-part, granting declaration and possession and rejected the prayer for mesne profits. Admittedly, the plaintiffs have not filed any appeal against rejection of mesne profits. While filing the appeal, according to the appellant, there is a delay of 90 days. The appellant has explained the delay stating that he was not well for a particular period. He was in financial problems and due to ill-health his physical condition was not good due to which was unable to move about and meet his advocate to give instructions to initiate further proceedings within the statutory period and therefore, there was delay in filing the regular appeal. He has stated that the delay was due to aforesaid bonafide reasons which was beyond his control and also stated that if delay is not condoned he will be put to great hardship, loss and damage. Accordingly he also adduced evidence in support of his case. Therefore, he sought to set aside the impugned judgment and decree. The lower appellate court considering the evidence and reasons assigned for the delay in the application has dismissed the application mainly on the ground that the appellant has not assigned any cogent reasons to condone the delay.
14. The lower appellate court while rejecting the application, has relied upon the decision of this Court in the case of Honnurappa vs. R. Masthan, reported in ILR 2008 KAR.2559 and in the case of Vriksha Estates Private Ltd. Vs. State of Karnataka, reported in 2012 (2) KCCR 925, to the effect that appellant is bound to explain each day's delay in filling the appeal by assigning valid and cogent reasons. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Basavaraj and another Vs. the special Land Acquisition Officer, reported in 2014(1) KLJ 34 (SC) to the effect that appellant himself has to satisfy the court that he was prevented by any sufficient cause from prosecuting the case. The lower appellate court failed to notice admittedly, the dispute between the parties is in respect of immovable properties and the suit was filed by the plaintiffs for declaration of title and possession and for mesne profits. The trial court has decreed the suit and granted relief of possession and declaration and rejected the claim for mesne profits. Against the said judgment and decree the appeal is filed.
15. The appellant has filed detailed affidavit in support of the application for condonation of delay and reiterated the same in his evidence as PW.1 stating that he was in financial problems and he was not keeping well unable to move about. The said reasoning has not at all been considered by the lower appellate court. The lower appellate court on the basis of judgment of this court and Supreme Court stated supra, has held that the appellant has not explained each day's delay and not given cogent reasons to condone delay of 90 days in filing the appeal. The learned Counsel for respondent state that there is delay of 126 days in filing the regular appeal but the learned Counsel for the appellant submits that delay is only 90 days. The said aspect is also not decided by the lower appellate court. The lower appellate court recorded a finding that appellant has not made out any case to condone the delay in filing the appeal and accordingly, the application came to be dismissed and consequently, dismissed the appeal.
16. It is to be seen that the lower appellate court ignoring the rights of the parties has technically dismissed the appeal. The lower appellate court failed to notice that ordinarily a litigant does not stand to benefit by lodging an appeal late. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
17. In the present case, the legal battle between the parties is in respect of immovable properties and litigant should not loose his battle on technicalities merely because there was delay of 90 days in filing. In fact, the appellant has explained the delay by way of an affidavit and appellate court ought to have allowed the application and proceeded to decide the case on merits in order to provide an opportunity to cause substantial justice. The same has not been done in the present case.
18. The Hon'ble Supreme Court while considering the provisions of Section 5 of the Limitation Act in the case of Collector (LA) vs. Katiji, reported in 1987 (2) SCC 107 has held that:
The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act, 1963, in order to enable the Courts to do substantial justice to the parties by disposing of matters on merits'. The expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common Knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have be percolated down to all the other courts on the hierarchy. And such a liberal approach is adopted on principle. ?
Therefore, the Hon'ble Supreme Court has held that, while condoning the delay the courts should consider the substantial justice rather than technical considerations. In the present case, appellate court dismissed the appeal mainly on the delay of 126 days in filing the appeal based on the law declared by this Court and Apex Court on earlier decisions which are not applicable to the facts and circumstances of the present case. The law declared in the case of Collector (LA) vs. Katiji, reported in 1987 (2) SCC 10 has been reiterated by the Hon'ble Supreme Court in the latest judgment in the case of Dhiraj Singh vs. State of Haryana, reported in (2014) 14 SCC 127, and held that it is the obligation of the Court while dealing with the application for condonation of delay, the approach of the court to be pragmatic and not by pedantic the substantial rights of the parties cannot be allowed to be defeated on technical grounds by taking hyper technical views of self-imposed limitations.
19. Taking into consideration the surrounding facts and circumstances of the case and the relief sought for by the parties is in respect of the immovable properties, this Court is of the considered opinion that the delay of 126 days in filing the appeal has to be condoned in order to do justice between the parties since the suit filed is in respect of immovable property and the appellant cannot be deprived of his right only on the ground of delay of 126 days. An opportunity should be given to the appellant to put forth his case and while doing so the respondents/ plaintiffs shall be compensated in terms of costs.
20. Accordingly, the impugned judgment and decree of the lower appellate court is set aside. Delay of 126 days in filing the appeal is condoned by allowing I.A. under Section 5 of the Limitation Act in the interest of justice, subject to condition that the appellant shall pay a sum of Rs.6,000/- as compensation in terms of costs to the respondents/plaintiffs before the lower appellate court. On such deposit, the appellate court shall decide the case on merits in accordance with law and as expeditiously as possible.
Both the parties are directed to appear before the lower appellate court on 21.09.2015 without waiting for any notice from the court.