1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE5H DAY OF JANUARY, 2015 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CIVIL REVISION PETITION NO.318/2012 ... PETITIONER BETWEEN: MR M RATHNAVARMA PADIVAL S/O LATE M N PADIVAL AGED ABOUT80YEARS MEHAR BUNGLOW, BALMATTA MANGALORE-575 001. (BY SRI.K CHANDRANATH ARIGA, ADVOCATE) AND:
1. MRS. M SHARADA R HEGDE2 MRS. M. SRIDEVI A SHETTY AGED ABOUT42YEARS W/O DR. RAJESH HEGDE NMC HOSPITAL P.O BOX NO.6222, ABUDHABI U.A.E. W/O MR. ANIL PRASAD SHETTY VINAYA, 4163, 1ST FLOOR, 8TH CROSS A MAIN HAL2D STAGE BANGALORE. LOCAL ADDRESS OF R1 COSMOS LANE, KADRI TEMPLE ROAD MANGALORE. 2 AGED ABOUT39YEARS W/O MR. NISHIKANTH SEMITHA NO.3, BUGATTI COURT MILL PARK, VICTORIA AUSTRALIA-3082 NO.1 TO4ARE REPRSENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR. KUMAR CHIKKAPPA ALVA AGED ABOUT30YEARS S/O U.T. ALVA KAVIRAJ, KADRI KAMBLA, D.K-575 001.
3. MRS. SHIBANI T SHETTY W/O TILAK DAS SHETTY NO.402, THRISANDYA APARTMENT DADA SAHEB PALKE ROAD DADAR EAST, MUMBAI.
4. MRS. RAJKAMAL N SEMITHA5 MR. NITHIN J SHETTY (BY SRI. R RAJAGOPALAN, ADVOCATE) THIS PETITION IS FILED UNDER SECTION115OF CPC AGAINST THE
ORDERDATED2010.2011 PASSED ON I.A.NO.1 IN R.A.No.___/2010 ON THE FILE OF THE PRL. SR.CIVIL JUDGE & CJM, MANGALORE, ALLOWING IA NO.1 FILED UNDER SECTION. 5 OF LIMITATION ACT. …..RESPONDENTS MAJOR, S/O J.A. SHETTY301 DIANA APARTMENTS UPPER BENDOOR ROAD MANGALORE-575 002 D.K., THIS PETITION BEING HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
3.
ORDERI have heard the arguments of Sriyuths G.Krishnamurthy and Srivatsa, learned Senior Advocates appearing for petitioner and respondents respectively.
2. Perused the order dated 20.10.2011 passed by Sr.Civil Judge, Mangalore in allowing I.A.No.I on cost of Rs.2,000/- in unnumbered R.A.__ of 2010 (now said to have been numbered as 75/2014).
3. Facts in brief which has led to filing of this appeal are as under.
4. Plaintiff filed a suit for permanent injunction in O.S.No.111/1997 in respect of suit schedule property against defendants. Said suit came to be decreed by judgment and decree dated 23.07.1998. Being aggrieved by said judgment and decree, an appeal came 4 to be filed under Section 96 of CPC. Since, said appeal was belatedly filed namely, it was presented beyond the prescribed period of limitation, an application under Section 5 of the Limitation Act came to be filed seeking condonation of delay. Said application was resisted by plaintiff by filing detailed statement of objections and denying the averments made in the affidavit supporting the application for delay. It was specifically contended by plaintiff that a Misc. Petition No.17/1998 had been filed by the defendants under Order 9 Rule 13 CPC for setting same judgment and decree and said Misc. Petition though came to be dismissed, defendants by suppressing this fact had filed the appeal and as such, it was contended that it is an abuse of the process of Court. Hence, plaintiff sought for dismissal of the application filed under Section 5 of Limitation Act, 1963 and also the appeal.
5. 5 Lower appellate Court having heard the learned Advocates appearing for parties allowed the application for condonation of delay on the ground that substantial rights of the parties cannot be deprived under the guise of technicalities. It came to be noticed by lower appellate Court that plaintiff had admitted that he was not aware that some of the respondents were residing outside India as one of the grounds to condone the delay in filing the appeal. On these grounds, interlocutory application I.A.No.I filed under Section 5 of the Limitation Act came to be allowed by Lower Appellate Court on cost of Rs.2,000/- and Registry was directed to register the appeal by order dated 20.10.2011 which is assailed by the plaintiff in this revision petition.
6. It is the contention of Mr.G Krishnamurthy, learned Sr.Advocate appearing for plaintiff that after suit came to be decreed on 23.07.1998, a petition under Order 9 Rule 13 CPC came to be filed by the defendants 6 on 26.08.1998 which also came to be dismissed on 12.01.2001 and by suppressing this fact, Regular Appeal came to be filed on 19.04.2010 along with an application I.A.No.I under Section 5 of Limitation Act, 1963 seeking condonation of delay of 11 years 8 months and 27 days in filing the appeal. He would also contend that appeal in question itself was not maintainable since an order of dismissal of the petition filed under Order 9 Rule 13 CPC is an appealable order under Section 96(2) read with Order 43 Rule 1(d) CPC and as such, appeal filed by defendants challenging the judgment and decree dated 23.07.2008 passed in O.S.No.111/1997 is not maintainable. He contends that present appeal as such is hit by principles of resjudicata. In support of his submission, he has relied upon following judgments:
1. AIR2003SC3044Surya Dev Rai Vs. Ram Chander Rai 7
2) AIR2003SC2434Shivashakthi Co. Operative Housing Society Vs. Swaraj Developers
3) ILR2004KAR1594Nagawwa Vs. Mallappa
4) 2004(1) KCCR242V.B.Nayak Vs. S.R.Narasimhamurty and others
5) AIR2010SC3043Balwant Singh (Dead) Vs. Jagadish Singh & Others
6) (1979) 3 SCC745Dalbir Singh and Others Vs. State of Punjab
7) (2012)1 MAHARASHTRA L.J.
918 Shri Nandkishor Kanhyalal Agrawal Vs. Dhule Municipal Corporation, The Administrator Municipal Corporation and Deputy Commissioner Dhule Municipal Corporation Dhule
8) Order passed In C.R.P.No.419/2013 dtd. 9.12.2013. Kishan Kumar Sharma Vs. Premavathi 8
9) AIR2011SC1199Lanka Venkateshwarulu (d) by L.Rs Vs State Of Andhra Pradesh & Others 7. Per contra, Srivatsa, learned Sr.Advocate would support the order passed by the lower appellate Court and contends that revisional jurisdiction should not be exercised when a finding of fact has been recorded by a subordinate Court and only in cases involving question of jurisdiction that is, question regarding irregular exercise or non-exercise of the jurisdiction or the illegal assumption of jurisdiction by a Court are only amenable to revisional jurisdiction and no other orders. In support of this proposition, he has relied upon judgment of Hon’ble Apex Court in the case of MANINDRA LAND AND BUILDING CORPORATION LTD., VS. BHUTNATH BANERJEE AND OTHERS reported in AIR1964SC1336 8. He would further submit that when an exparte decree is passed a defendant would have two options 9 namely, either to file an appeal or file an application for setting aside the judgment and decree by taking recourse to Order 9 Rule 13 CPC. He contends that mere opting to one of the modes namely, invoking Order 9 Rule 13 CPC would not preclude such defendant to avail the substantive remedy of appeal provided under Section 96 CPC and in the instant case, on dismissal of application filed under order 9 Rule 13 CPC by the trial Court, defendants have promptly approached the lower appellate Court challenging the said exparte judgment and decree and on account of there being delay in presenting the appeal, application for condonation of delay came to be filed explaining the cause for such delay which came to be accepted by the lower appellate Court and as such, he contends that contention raised by the learned Sr.Advocate appearing for the plaintiff that defendants are precluded from filing an appeal challenging exparte judgment and decree should not be 10 accepted. In support of his submission, he has relied upon judgment of the Hon’ble Apex Court in the case of BHANU KUMAR JAIN VS. ARCHANA KUMAR AND OTHERS Reported in AIR2005SC626 9. Having heard the learned Advocates appearing for the parties and on perusal of the order under challenge and citations relied upon by the respective learned Sr.Advocates, this Court is of the considered view that following points would arise for consideration:
1. Whether the revision petition is maintainable?. OR Whether this Court exercising revisional jurisdiction can set aside the order passed by the lower appellate Court condoning the delay in filing the appeal or not?. 11
2) Whether defendants ought to have filed an appeal under Section 96(2) of CPC r/w Order 43 Rule 1(d) of CPC against the order of dismissal dated 26.08.1998 whereunder petition filed by defendants under Order IX Rule 13 CPC came to be dismissed?. OR Whether defendants could have filed R.A.No.75/2014 under Section 96 r/w Order 41 Rule 1 CPC even after dismissal of Misc.Petition 17/1998 on 26.08.1998 and whether such appeal namely, R.A.No.75/2014 was maintainable?.
3) Whether lower appellate Court was justified in condoning delay of 11 years 8 months and 27 days in filing the appeal in the 12 facts and circumstances of the case?.” In order to adjudicate the points formulated herein above, this Court is of the considered view that few facts which would have direct bearing and impact are required to be noticed chronologically and as such they are tabulated herein below: Date Particulars 05.02.1997 O.S.No.111/1997 filed by plaintiffs injunction for relief of perpetual against defendants – 1 to 5. 23.07.1998 Suit came to be decreed as prayed for. 26.08.1998 Misc.Petition No.17/1998 filed by defendants – 1 to 5 under Order 9 Rule 13 CPC. 12.01.2001 Misc.Petition No.17/1998 came to be dismissed. 19.04.2010 R.A.No.75/2014 (earlier unnumbered R.A.) filed along with application for condonation of delay of 11 years 8 months and 27 days. 20.10.2011 I.A. filed under Section 5 of the Limitation Act, 1963 came to be allowed and appeal – R.A. was ordered to be registered. 13 RE: POINT NO.(1):
10. Learned Sr.Counsel appearing for respondent has contended that present revision petition is not maintainable and this Court in exercise of its revisional jurisdiction under Section 115 CPC ought not to interfere with the findings of fact recorded by a subordinate Court. He has relied upon the judgment of the Hon’ble Apex Court in the case of MANINDRA LAND AND BUILDING CORPORATION LIMITED vs BHUTNATH BANERJEE AND OTHERS reported in AIR1964SC1336 In the said case, suit for recovery of money due under a mortgage deed filed by the plaintiff came to be decreed by passing an exparte preliminary decree and subsequently final decree also came to be passed. The first application for execution of the decree came to be dismissed for default and when second application for execution of the decree came to be filed, defendant’s legal heirs filed objections under Section 47 14 of CPC disclosing the death of the original defendant. It is thereafter decree holder filed an application for substitution or setting aside the abatement which came to be opposed. However, the executing Court held that decree holder had been prevented by sufficient cause and accordingly set aside the abatement. The respondents pursued their grievance before the High Court by filing a revision petition. High Court disagreed with the view taken by the trial Court and held that appellant had failed to make out sufficient cause for the delay in applying for setting aside the abatement and for substitution and it was filed much later than the period allowed by law and accordingly set aside the order of the executing Court and dismissed the application filed to bring L.Rs. of defendants on record. Being aggrieved by this order, the decree holder pursued the matter before the Hon’ble Apex Court and in this background, the Hon’ble Apex Court has held interference in revisional 15 jurisdiction is to be limited to jurisdictional aspect only and not with regard to finding of fact. It has been held by the Hon’ble Apex Court as under: is however contended for It “8. the respondent that a decision on a question of limitation involves the question of jurisdiction and in support of this contention reliance is placed on the case reported as Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 at p. 142: (AIR1949PC239at p 242). This case laid down no different principle of law. What it said in that connection was quoted with approval in Keshardeo Chamaria v. Radha Kissen Chamaria, 1953 SCR136at p.152: (AIR1953SC23at p.28) and those observations are :
"There have been a very large number of decisions of Indian High Courts on Section 115 to many of which their Lordships have been referred. Some of the observation that High Courts have not always appreciated that although error in a decision of a subordinate court does not subordinate illegally or with material irregularity so as to justify interference in revision under sub- section (c), nevertheless, if involve has decisions that the prompt itself court such acted 16 court the erroneous decision results in the subordinate exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub-section (a) or sub-section (b) and sub-section (c) can be ignored."
The further observations in that case on which learned counsel for the respondents mainly relies are :
"The cases of Babu Ram v. Munna Lal ILR49All 454: (AIR1927all
358) and Hari Bhikaji v. Naro Vishvanath ILR9Bom 432 may be mentioned as cases in which a subordinate court by its own erroneous decision (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result."
These remarks are not applicable to the facts of the present case. They apply to cases law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of the jurisdiction under in which the 17 provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one, the Court decides a question of law pertaining to jurisdiction. By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction. In the other, it decides a question within its jurisdiction. In the present case, the question whether there was a sufficient cause was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly.
9. Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the Subordinate Court comes to an erroneous decision, it is open to prescribed if 18 within jurisdiction its provisions the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter.
10. Section 5 of the Limitation Act, on the other hand, empowers the Court to admit an application, to which are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it time. The Court therefore had to determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and, if so satisfied, to admit it.
15. We are therefore of opinion that the High Court in interfering with the finding of fact arrived at by the Subordinate judge with respect to the appellants having sufficient cause for not making an application the respondents on record within time and for not applying for the setting aside of the abatement within time. We allow the appeal with costs throughout, set aside the order of the Court below and restore that of the Trial Court. It will now proceed according to law fell in error for bringing 19 with the further execution of the decree on the second application presented by the appellant for the purpose.” 11. Section 115 of CPC and the proviso thereunder would clearly indicate that High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding except where the order, if it had been made in favour of a party applying for revision would have finally disposed of the suit or other proceeding. Undisputedly, proviso came to be substituted by Act 46/1999 with effect from 01.07.2002.
12. If the impugned order is of interim in nature or does not finally decide the lis, then, revision would not be maintainable and it would not be amenable to revisional jurisdiction. In other words, revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. 20 13. Keeping these principles in mind, when facts on hand are examined, it would indicate that defendants in O.S.No.111/1997 had filed an appeal under Section 96(2) CPC questioning the judgment and decree dated 23.07.1998. Undisputedly, said appeal came to be filed on 19.04.2010 and as such, there was delay of 11 years 8 months and 27 days in filing the appeal. Hence, an application under Section 5 of the Limitation Act, 1963 came to be filed seeking condonation of delay, which has since been allowed by the trial Court as already noticed herein above.
14. In the event of the said application had been dismissed, the lis between the parties would have come to an end. In other words, if the order passed by the lower Appellate Court allowing the application for condonation of delay which is under challenge in this revision petition is accepted or in other words, order of the lower Appellate Court is set aside, the proceedings 21 before the lower appellate Court would stand finally disposed of, as contemplated under proviso to Section 115 CPC.
15. Hence, this Court is of the considered view that judgment relied upon by the learned Sr.Counsel appearing for respondent would be inapplicable to the facts and circumstances of the case which judgment was rendered by the Hon’ble Apex Court pre- amendment to Section 115 CPC. Hence, Point No.1 is answered in the affirmative. RE: POINT NO.(2):
16. Suit O.S.No.111/1997 undisputedly came to be decreed on 23.07.1998. Defendants though appeared through their Advocates and took sufficient time to file the written statement did not chose to file the same and as such, after recording the evidence of plaintiff and 22 after hearing the arguments of plaintiff’s counsel, trial court decreed the suit.
17. Being aggrieved by the exparte judgment and decree passed by the trial Court, defendants filed a Misc.Petition No.17/1998 under Order 9 Rule 13 CPC on 26.08.1998 and sought for setting aside the said judgment and decree. Said Misc.Petition No.17/1998 came to be dismissed for default by order dated 12.01.2001. Thereafter defendants did not pursue the matter and they left at it.
18. A person aggrieved by an order passed by the Court dismissing the petition filed under Order 9 Rule 13 CPC would be entitled to challenge the same under Section 96(2) CPC read with Order 43 Rule 1(d) CPC. There cannot be any dispute with regard to this proposition of law. In the instant case, undisputedly, after dismissal of Misc.Petition No.17/1998 on 12.01.2001, defendants did not file such an appeal. 23 They also did not take any steps for restoration of the Misc.Petition No.17/1998. In other words, the order of dismissal of Misc.Petition No.17/1998 dated 12.01.2001 became final.
19. A defendant has two options against an exparte judgment and decree passed against him, apart from filing a review petition and filing a suit for setting aside the exparte decree on the ground of fraud namely, he can file an appeal challenging the said exparte judgment and decree under Section 96(1) read with Order 41 Rules 1 and 2 CPC or file an application/petition under Order 9 Rule 13 CPC. The incidental question which would arise is whether defendant can avail both the remedies or not?. In fact, similar question came up for consideration before Hon’ble Apex Court in the case of BHANUKUMAR JAIN vs ARCHANA KUMAR & ANOTHER reported in AIR2005SC626and it came to be held as under:
24. “24. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: (i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and (ii) The suit could not have been posted for ex-parte hearing.
25. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.
26. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with 25 the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation 1 appended to said provision does not suggest that the converse is also true. thereof, In an appeal filed in terms of 27. Section 96 of the Code having regard to Section 105 is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. it simultaneously 28. It is true that although there may not be a statutory bar to avail two an remedies and appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary statutory provisions.” to any other (emphasis supplied) 26 20. In the light of law laid down by the Hon’ble Apex Court in BHANUKUMAR JAIN referred to supra, when the facts on hand are examined, it would clearly indicate that after dismissal of the Misc.Petition No.17/1998 on 12.01.2001, instead of pursuing the said course available to the defendants namely, filing an appeal as contemplated under Section 96(2) read with Order 43 Rule 1(d) CPC, defendants chose to challenge the exparte judgment and decree by filing an appeal under Section 96(1) read with Order 41 Rules 1 and 2 CPC which is a substantive right, as such, it cannot be held that appeal filed though belatedly was not maintainable on the ground of same being hit by principles of resjudicata. Accordingly, point No.(2) formulated herein above is answered by holding that appeal in question namely, appeal filed by the defendants in R.A.No.75/2014 challenging the exparte 27 judgment and decree passed in O.S.No.111/1997 was maintainable before the lower appellate Court. RE: POINT NO.(3):
21. Defendants had challenged the exparte judgment and decree passed in O.S.NO.111/1997 dated 23.07.1998 by filing an appeal under Section 96 read with Order 41 Rules 1 and 2 CPC. Said appeal came to be presented on 19.04.2010. Said appeal was required to be filed within 30 days from the date of judgment and decree as prescribed under Article 116B of the Limitation Act, 1963. Thus, reckoning the period of limitation from the date of exparte judgment and decree passed by the trial Court i.e., from 23.07.1998 to the date of filing of Appeal R.A.No.75/2014 (then unnumbered) i.e., 19.04.2010 there was delay of 11 years 8 months and 27 days. Hence, an application under Section 5 of the Limitation Act, 1963 came to be filed seeking condonation of delay. In the affidavit filed 28 in support of said application, delay was sought to be explained in paragraphs 2,3 and 4 which reads as under: “2.
3. I say that, all the appellants are residing out side Mangalore in fact two of the appellants are residing out of India. All the appellants had asked their father to defend the case after receiving the summons from the Court. say, the father of the I appellants was a public servant and he was very busy with his works. He had entrusted the matter to respondent No.2 and asked him to fight the case on behalf of the appellants. The father of the appellants was enquiring of the respondent No.2 about But the unfortunately respondent No.2 is not instruct the Advocate on behalf of the appellants and the Advocate has not hence appeared and contested the matter. Hence the court was pleased to decree the suit without giving the appellants. opportunity case. the to (Emphasis supplied) 29 4. I say, the appellants have come to know about the passing of the decree recently in the mean time there was a talk for settlement hence the appeal could not filed in time.” The above said application filed seeking condonation of delay came to be resisted by the plaintiff by filing detailed statement of objections and specifically contending that defendants had earlier filed a Misc.Petition 17/1998 which ended in dismissal on 12.01.2001 and defendants were aware of the said exparte judgment and decree passed by the trial Court and as such, they contended that cause shown for the delay in filing the appeal is bereft of facts and untrue. As such, they sought for dismissal of the application.
22. Perusal of the order passed by the lower appellate Court would indicate that at paragraph 14 it has been 30 held that “substantial rights of the parties cannot be deprived on the ground of technicalities” and also on the ground that plaintiff had admitted that he was not aware about some of the defendants being residents outside India. On these grounds, as already noticed lower appellate Court has allowed the application on payment of cost of Rs.2,000/- by defendants to plaintiffs by condoning the delay.
23. In the normal course, this Court would have refused to interfere with the order passed by the lower appellate Court whereunder an application for condonation of delay had been allowed on the ground that technicalities when pitted against substantial justice, such technicalities will have to yield to substantial justice. In other words, it can be said that no litigant would stand to benefit by approaching the Court belatedly. At the same time, it requires to be noticed that concepts such as “liberal approach”, 31 “justice oriented approach”, “substantial justice” cannot be employed to jettison substantial law of limitation as held by the Hon’ble Apex Court in the case of LANKA VENKATESHWARULU (D) BY L.RS vs STATE OF ANDHRA PRADESH & OTHERS reported in AIR2011SC1199particularly when Court comes to a conclusion that there was no justification for delay. Thus, primary concern of the Court while examining an application for condonation of delay is to ascertain or examine as to whether the cause shown for approaching the Court belatedly is sufficient enough to accept the same to condone the delay. It is not the length of delay which will have to be considered but the cause shown namely, the existence of sufficient cause for not approaching the Court within prescribed time. If in a given case, the cause shown is not sufficient or in other words, it is not within proximity of truth or contrary to facts then it would, amount to insufficient cause. In 32 those circumstances, Courts would be slow in condoning delay. Likewise, when delay is inordinate and unexplained and reasons given in the application or the affidavit supporting such application as the case may be, is fraught with vagueness, or incorrect facts or facts contrary to record is pleaded, even then, Courts would be slow to condone the delay.
24. Proof of sufficient cause is a condition precedent for the exercise of discretion and only on establishing the said cause being sufficient, the Court will examine as to whether the delay should be condoned. In the event of applicants failing in this initial test, they cannot be heard to contend that still delay is to be condoned in the interest of substantial justice.
25. On the ground of delay, the larger relief to which the litigant may be entitled to cannot be deprived of. Delay defeats equity. The Hon’ble Apex Court in the 33 case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANR vs. MST. KATJI AND OTHERS reported in AIR1987SC1353has laid down the illustrative contours under which an application for condonation of delay requires to be examined. It has been held in the said judgment to the following effect:
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to 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. 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 percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- It 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 34 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. justice 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour’s delay, every second's delay?. The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred side cannot claim to have vested right in injustice being done because of a non-deliberate delay. the other for 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 35 6. 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. the law and treatment Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the ‘State’ is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its 36 application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides". time barred, it as 26. It is no doubt true that a pragmatic approach and certain amount of latitude requires to be extended while examining the cause for delay. Sufficient cause does not mean every day’s delay has to be explained. On an overall reading of the cause shown would inspire confidence in the mind of Court to accept it as genuine and the same to be in the proximity of truth, it would be sufficient cause to condone the delay as otherwise, not. At the same time, as already noticed herein above, all discretionary powers will have to be exercised in 37 accordance with law. The Hon’ble Apex Court in the case of LANKA VENKATESHWARULU (D) BY L.RS vs STATE OF ANDHRA PRADESH & OTHERS reported in AIR2011SC1199has held to the following effect: “19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors (1987) 2 SCC107 20. In the case of M. Balakrishnan (AIR1998SC3222 (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
21. In the case of Sardar Amarjit Singh Kalra (AIR2003SC2588 (supra), this 38 Court again emphasized that provisions contained in the Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that laws of procedure are meant to regulate effectively, assist and aid the object of doing a substantial and real justice and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws. In the case of Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini & Ors, (AIR2003SC4244 (Supra), this Court again reiterated that in as much as abatement results in denial of hearing on the merits of the case, the provision of an abatement has to be construed strictly. On the other hand, the prayer of setting aside abatement and the dismissal consequent upon abatement had to be considered liberally. It was further observed as follows:- "The Courts have to adopt a justice oriented approach dictated by the 39 uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court."
in 22. The concepts of liberal approach and reasonableness the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (AIR2010SC3043 (supra), as follows:- exercise of "sufficient cause" has
"25. We may state that even if the term to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of is general understood connotation."
"reasonableness" its in as it
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a 40 to explain given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
implementing considering 26. We are at a loss xxx unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, xxx in a number of cases. Whilst for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and discretionary applications All in a 41 should not form the basis of exercising discretionary powers.” 27. Keeping above principles in mind, when the facts on hand are examined, it would indicate that the plea raised in paragraphs 2, 3 and 4 of affidavit supporting the application for condonation of delay which has already been extracted above is not only bereft of material particulars but it is also as vague, vagueness could be. In fact, there is suppression of material facts by the defendants.
28. Defendants -1 to 5 being aggrieved by the exparte judgment and decree dated 23.07.1998 passed in O.S.No.111/1997 had filed Misc.Petition No.17/1998 through their General Power of Attorney holder Mr.U.T.Alva as could be seen from the Misc.Petition No.17/1998 appended to the present revision petition. This petition was prosecuted by them before the trial 42 Court for a period of nearly three years i.e., till it came to be dismissed for default on 12.01.2001. subsequently, appeal R.A.No.75/2014 (earlier it was unnumbered since there was delay) came to be filed on 19.04.2010. Said appeal came to be presented by the defendants through their Power of Attorney holder by name Sri.Kumar Chikkappa Alva who is none other than son of Sri U.T.Alva who was the General Power of Attorney Holder of defendants when Misc.Petition No.17/1998 was filed and who had also represented the defendants in O.S.No.111/1997. As such, the cause shown in the affidavit supporting the application for condonation of delay about appellants not being aware of the exparte judgment and decree passed in O.S.No.111/1997 on 23.07.1998 as pleaded by them in paragraph 4 of the affidavit is held to be a false statement. In fact, in the Misc.Petition No.17/1998 filed by them it is specifically contended by the 43 defendants that they had obtained copy of judgment and decree on 07.08.1998 from their previous counsel after which they had approached their advocate for filing the Misc.Petition. In other words, this plea putforward by the defendants in the Misc.Petition No.17/1998 would clearly indicate that defendants were very much aware of the exparte judgment and decree passed in O.S.No.111/1997 way back on 07.08.1998 itself and it is because of this reason they had filed Misc.Petition 17/1998 and did not pursue the same after it came to be dismissed on 12.01.2001. That apart no reasons are assigned by defendants for the period of nine years i.e., from date of dismissal of Misc.Petition No.17/1998 (12.01.2001) to date of filing of R.A.No.75/2014 on 19.04.2010. As such, plea now putforward in paragraph 4 of the affidavit supporting the application through their Power of Attorney holder which is to the effect about “appellants having come to 44 know about passing of the decree recently” is not only a false statement and by no stretch of imagination said cause can be held to be sufficient cause to condone the delay. Much water has flown down the bridge. Right accrued to the defendant now cannot be unsettled.
29. Thus, taking into consideration all the attendant circumstances namely, substantial justice, liberal approach and justice oriented approach and after applying the same to the facts on hand, it has to be held that defendants in the instant case have utterly failed to prove that they were prevented by any sufficient cause in filing the appeal belatedly or the cause shown by them would constitute sufficient cause for being accepted.
30. In that view of the matter, Point No.(3) has to be answered in the negative namely, it has to be held that lower appellate Court was not justified in condoning the 45 delay for entertaining the appeal to be examined on merits.
31. For the reasons aforestated, I proceed to pass the following order: (1) Revision petition is hereby allowed. (2) Order dated 20.10.2011 passed by Sr.Civil Judge, Mangalore allowing I.A.No.I filed under Section 5 of the Limitation Act, 1963 in R.A.No.75/2014 (then unnumbered R.A.__/2010) is hereby set aside. (3) I.A.No.I filed under Section 5 of the Limitation Act, 1963 is hereby dismissed and consequently, appeal R.A.No.75/2014 stands dismissed. (4) Costs made easy. Sd/- JUDGE *sp