A party must provide substantial and convincing evidence to support a claim for condonation of delay in filing an appeal under Section 5 of the Limitation Act.

JUDGMENT :

G. BASAVARAJA, J.

1. The appellant, who is defendant before the trial Court, has preferred this second appeal against the order dated 30^th January, 2009 passed in Misc. No.30 of 2004, by the Principal Civil Judge (Sr.Dn.), Gokak on the Application filed under Section 5 of LIMITATION ACT (for short “the first appellate Court”).

2. For the sake of convenience, the parties herein are referred to as per their status and rank before the first appellate Court.

3. Brief facts leading to this appeal are that the plaintiff filed Suit for declaration and injunction in respect of suit schedule property on the basis of the Will said to have been executed by one Smt. Satyavva w/o Ramanna Babanna Baddi. Though defendant has appeared before the trial Court through his Counsel, but has not filed written statement. After recording the evidence of PW1 and 2 and production of 28 documents which are marked as Exhibits P1 to P28, suit came to be decreed with costs vide Judgment dated 16^th January, 2001. Being aggrieved by this Judgment and decree, the appellant-Vittal Revappa Rebannavar who is the grandson of defendant-Bhimappa Sangappa Arabannavar has filed appeal and along with appeal he has filed Application under Section 5 of LIMITATION ACT to condone the delay in filing the appeal, which came to be registered as Misc.No.30 of 2004. The appellant examined himself as PW1 and on closure of appellant’s side evidence, respondent has adduced his evidence as RW1 and marked three documents as Exhibits R1 to R3. Having heard the arguments on both sides, the first appellate Court dismissed the Application. Being aggrieved by the said dismissal of Application, appellant has preferred this second appeal.

4. This Court, vide order dated 9^th September, 2025, formulated the following substantial questions of law:

i. Whether the first appellate Court, i.e. the Principal Civil Judge (Sr.Dn.), Gokak was justified in rejecting the Application fight under Section 5 of the LIMITATION ACT , while preferring the Regular Appeal?

ii. What order or decree?

5. Smt. Pooja Kulkarni appearing on behalf of Sri Dinesh M. Kulkarni, learned counsel appearing for the appellant, would submit that the impugned order passed by the first appellate Court is not in accordance with law. She would further submit that the first appellate Court recorded evidence of PW1 on 7^th April, 2001 and without posting the case for further evidence of PW2, directly posted the case for argument on 16^th June, 2001 and pronounced the Judgment on the same day. Hence, there is no fair trial before the trial Court. Though the appellant has placed sufficient cause to condone the delay, the first appellate Court has not considered the same and rejected the Application. On all these grounds, it was sought to allow the appeal. To substantiate her arguments, the learned Counsel placed reliance on the following judgments:

1. Mohan Kumar v. State of Madhya Pradesh and Others , (2017) 4 SCC 92

2. Sainik Security v. Sheila Bai and Others , (2008) 3 SCC 257

3. Ummer v. Pottengal Subida and Others , (2018) 15 SCC 127

4. Rangappa and Others v. Nagappa and Others , ILR 2016 Kar. 4463

5. Leela Devi W/o Abasaab Bhosale and Another v. Narayan S/o Gundu Jhadhav and Another , 2017 (3) AKR 590

6. Jegannathan v. Raju Sigamani and Another , (2012) 5 SCC 540

7. Corporation of Madras and Another v. M. Parthasarathy and Others , AIR 2018 SC (Civil) 3006

6. As against this, Sri Sanjay S. Katageri, learned Counsel appearing for respondents would submit that the first appellate Court has appreciated the evidence on record in accordance with law and facts, and absolutely there are no grounds to interfere with the impugned order passed by the first appellate Court and accordingly, sought for dismissal of the appeal.

7. I have examined the materials placed before me. The plaintiff has filed suit for declaration and injunction in respect of the suit property on the basis of registered Will dated 25^th November, 1987. Though