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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K.S. HEMALEKHA, J.
Gundappa S/o Lachamappa Lamani – Appellant
Versus
Topanna S/o Balappa Lamani – Respondent
Regular Second Appeal No. 100157 of 2016
Decided On : 24-05-2023
Section 5 of the Limitation Act, 1963 allows the court to condone the delay in filing an appeal if sufficient cause is shown. Section 17 of the Limitation Act prescribes a three-year limitation period from the date of discovery of fraud. The Supreme Court's decisions in Bhivchandra Shankar More vs. Balu Gangaram More and Others and N. Balakrishnan vs. M. Krishnamurthy were referred to by the High Court. These cases emphasized that the right of appeal is a statutory right and should not be curtailed unless the statute expressly or by necessary implication says so. The expression 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice. The rules of limitation are not meant to destroy the rights of the parties but to ensure that parties do not resort to dilatory tactics.
Fact of the Case:
The legal heirs of defendant No. 1 and defendant No. 2 are challenging the dismissal of their appeal by the first Appellate Court on the ground of delay. The defendants filed an application under Section 5 of the Limitation Act to condone the delay of 865 days in filing the appeal. The Trial Court had decreed the suit for partition and separate possession in favor of the plaintiff. The defendants argued that they were not served with the summons and were unaware of the suit. They claimed that the delay was due to the plaintiff committing fraud by signing the vakalath on behalf of the defendants. The first Appellate Court dismissed the application and the appeal as barred by limitation. The defendants appealed to the High Court, arguing that they had sufficient cause for the delay in filing the appeal.
Finding of the Court:
The High Court referred to the Supreme Court's decisions in Bhivchandra Shankar More vs. Balu Gangaram More and Others and N. Balakrishnan vs. M. Krishnamurthy. The Supreme Court held that the right of appeal is a statutory right and should not be curtailed unless the statute expressly or by necessary implication says so. The Court also emphasized that the expression 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice. The Court further noted that the rules of limitation are not meant to destroy the rights of the parties but to ensure that parties do not resort to dilatory tactics. The Court concluded that the delay in filing the appeal should be condoned in the interest of justice, as there was no gross negligence or deliberate inaction by the defendants. The appeal was remanded back to the first Appellate Court with a direction to consider the appeal on merits after imposing a reasonable cost on the defendants.
Ratio Decidendi: The delay in filing an appeal should be condoned in the interest of justice, where there is no gross negligence or deliberate inaction by the appellant. The expression 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice. The rules of limitation are not meant to destroy the rights of the parties but to ensure that parties do not resort to dilatory tactics.
Result: The High Court allowed the appeal, set aside the order of the first Appellate Court dismissing the application under Section 5 of the Limitation Act, and condoned the delay of 865 days in filing the appeal. The defendants were directed to pay a cost of Rs. 20,000 to the plaintiff. The matter was remitted back to the first Appellate Court to consider the appeal on merits after affording sufficient opportunity to both parties. The first Appellate Court was directed to dispose of the appeal expeditiously within six months from the date of receipt of the judgment. All contentions of the parties were kept open.
JUDGMENT :
K.S. HEMALEKHA, J.
1. The legal heirs of defendant No. 1 and defendant No. 2 are assailing the order passed in R.A. No. 36/2014 dated 02.01.2016 on the file of the Additional District and Sessions Judge, Gadag, whereby the application-I.A. No. 1 filed under Section 5 of the Limitation Act for condoning the delay of 2 years 5 months 15 days (865 days) in preferring the appeal, consequently dismissing the regular appeal on the ground of delay and confirming the judgment and decree of the Trial Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. The plaintiff-respondent filed a suit for partition and separate possession. The said suit came to be decreed on 02.01.2012. Aggrieved by the judgment and decree, the defendants preferred appeal before the first Appellate Court and there was a delay of 865 days in preferring the first appeal, along with the appeal the defendant filed application-I.A. No. 1 under Section 5 of the Limitation Act seeking to condone the delay in preferring the appeal. The plaintiff filed objections to the said application. The first appellate court after hearing both the parties has held that the defendant has failed to make out satisfactory and acceptable ground for condoning the delay in preferring the appeal and dismissed I.A. No. 1 and consequently, dismissed the appeal as barred by limitation.
4. Aggrieved by the order of dismissal of the application and the appeal, the present appeal by the defendants.
5. The appeal has been admitted by this Court on 01.03.2018 by framing the following substantial question of law:
6. Heard the learned counsel for the appellants and the learned counsel appearing for the respondent on the substantial question of law framed by this Court.
7. The question of law framed by this Court is with regard to whether the appellants have made out sufficient ground to condone the delay in preferring the appeal before the first Appellate Court.
8. Facts reveal that the plaintiff filed a suit for partition and separate possession in respect of three items as mentioned at S. No. 1(A), 1(B) and 1(C). According to the plaintiff, item No. 1(A) was fallen to the share of plaintiff and defendant No. 1, in light of the partition among their brothers, mutation entry has been effected. Suit item No. 1(B) was fallen exclusively to the share of the plaintiff in the partition and the mutation entry has been effected and item No. 1(C) is also the exclusive property of the plaintiff. It appears from the plaint averments that the suit was filed contending that the defendants were interfering and obstructing the rights of the plaintiffs by which the plaintiffs were constrained to file the suit.
9. The summons was issued to the defendants and the defendant appeared through their counsel. However, inspite of sufficient opportunity afforded to the defendant, the defendant did not file written statement nor led evidence and the written statement was taken as Nil, cross-examination and evidence of defendants were also taken as Nil due to the absence of the defendants and their counsel as is evident from paragraph No. 4 of the judgment of the Trial Court.
10. The Trial Court, answered the issues in favour of the plaintiff, holding that the plaintiff has proved that he is entitled for partition and separate possession of his half share in suit item 1(A), declaring the plaintiff as absolute
The delay in filing an appeal should be condoned in the interest of justice, where there is no gross negligence or deliberate inaction by the appellant. The expression 'sufficient cause' in Section 5....
The court emphasized the need for a reasonable explanation for delay in presenting an appeal and highlighted the importance of adhering to the substantive law of limitation.
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