T.V. Hanumantharayappa (Dead) by L.Rs Vs. Kempamma and Others - Court Judgment

Excerpt:
[ram mohan reddy, j.] limitation act, 1963 - section 5 -- extension of prescribed period in certain cases -- whether the lower appellate court was justified in allowing i.a.no.1, to condone the delay of 1450 days with cost of rs.2,000/- without notice to the plaintiffs/respondents, to interfere with the judgment and decree of the trial court? in the circumstances, the substantial question of law is answered in the negative, in other words, that the lower appellate court was not justified in condoning the delay of 1450 days, to interfere with the judgment and decree of the trial court. in the result this appeal is allowed.1. this appeal, listed for admission after notice to the respondents who, though served are absent and unrepresented, is finally heard and disposed of by this order.2. the unsuccessful legal representatives of the deceased defendants in o.s. no.283 of 1994 having suffered a judgment and decree dated 27-2-2002 of the ii additional civil judge (junior division) and jmfc, tumkur, allowing the suit and directing them to deliver vacant possession of the suit schedule ‘b’ item property to the plaintiff declared to be its absolute owner and not to interfere with the possession of said property, filed r.a.no.162 of 2008 before the i additional district judge, tumkur, together with i.a.no.1 of 2006 to condone the delay in filing the appeal, which when allowed by judgment and decree dated 25-11-2010, the plaintiffs have presented this second appeal.3. having heard the learned counsel for the appellants, perused the pleadings and examined the judgment and decree as well as the records of the courts below, the following substantial question of law arises for decision making:“whether the lower appellate court was justified in allowing i.a.no.1, to condone the delay of 1450 days with cost of rs.2,000/- without notice to the plaintiffs/respondents, to interfere with the judgment and decree of the trial court?”4. the order dated 14-7-2006 on i.a.no.1 under section 5 of the limitation act, 1963, when perused, discloses that the ia was supported by the affidavit of the 1st appellant/1st defendant, alleging that the 3rd defendant, none other than her sibling and daughter of the deceased defendant, when brought on record as his legal representative, in the suit, was entrusted with the conducting o the case, had joined hands with the plaintiffs and did not inform the outcome of the suit, while the delay was occasioned since she is a poor lady unable to meet the expenses. the lower appellate court declined to accept the allegation against the 3rd defendant, nevertheless, took a lenient view to condone the delay of 1450 days on the premise that the appellant was a poor woman unable to meet expenses in filing the appeal within time. this reason, in my considered opinion, is not in conformity with the law laid down by this court in union of india v karnataka electricity board (ilr 1987 kar.2552 (db), whereunder it is held that the object of laws of limitation are laws of repose and peace and are founded on public policy intended to eliminate the unsettling influence of perpetual threats of litigation and that they are intended to quiet stale demands. in addition, there is nothing on record to show why the other appellants did not file the appeal within time, in other words failed to show sufficient cause. yet another reason is the fact that the order sheet discloses that ia was heard and order dated 14-7-2006 passed allowing the i.a. without notice to the plaintiff/respondents, thus following a perverse procedure.5. in the circumstances, the substantial question of law is answered in the negative, in other words, that the lower appellate court was not justified in condoning the delay of 1450 days, to interfere with the judgment and decree of the trial court.6. in the result this appeal is allowed. the judgment and decree in r.a.no.144 of 2006 (new r.a. no.162 of 2008) of the civil judge (senior division), tumkur, is set aside. r.a. is restored to file and the proceeding remitted to the lower appellate court for a proper decision on i.a.no.1, after extending reasonable opportunity off hearing to the parties including adducing evidence on the application to condone the delay.