For a delay to be condoned under Section 5 of the Limitation Act, the appellant must establish sufficient cause, independent of case merits, and allegations of fraud require substantial proof.

JUDGMENT :

G. BASAVARAJA, J.

1. The appellant has filed this appeal against the order dated 20^th March, 2025, passed in RA No.93 of 2022 by the 10^th Additional District Judge, Belagavi, by which judgment the Application filed by the appellant under Section 5 of LIMITATION ACT , came to be dismissed.

2. Brief facts leading to this appeal are that the appellant was defendant No.4 in OS No.28 of 2010 filed by respondent No.1, seeking relief of partition and separate possession of suit schedule property. The suit came to be decreed holding that the original plaintiff is entitled to one-fourth share in the schedule property. The original plaintiff in the suit, filed Final Decree Proceedings in FDP No.17 of 2017 on the file of Principal Senior Civil Judge, Belagavi. The plaintiff manipulated the signature of the appellant herein to obtain the final decree of OS No.28 of 2010, behind the back of his own brother, the appellant herein. When the appellant came to know about the final decree, he filed miscellaneous application bearing No.8 of 2019 under Order IX Rule 13 of CPC seeking to set aside the order of the Court which placed him ex-parte in final decree proceedings No.17 of 2017. The miscellaneous application came to be rejected. Against the same, Miscellaneous Appeal No.8 of 2019 came to be filed and during the pendency of the miscellaneous appeal, the appellant preferred appeal in RA No.93 of 2022 against the final decree in FDP No.17 of 2017. The appeal was dismissed by the first appellate Court. Being aggrieved by the same, appellant is before this Court in this second appeal.

3. The learned Counsel for the appellant would submit that the judgment and decree passed by both the courts below are contrary to facts, grounds and the settled proposition of law. The first appellate Court committed a grave mistake in considering Court Commissioner’s report which, on the face of it, was devoid of proper application of mind. The first appellate Court failed to consider the merits of the appeal and decided the appeal on sole basis of delay, which is unsustainable. He would further submit that the first appellate Court failed to hold enquiry on the application filed under Section 5 of LIMITATION ACT and hence, sought for formulating substantial question of Law.

4. I have examined the material placed before the Court. Though the counsel for the appellant has urged several grounds in the memorandum of appeal, this second appeal is preferred only against the order passed on the Application filed under Section 5 of LIMITATION ACT in Regular Appeal No.93 of 2022. The appellant has not sought to adduce evidence on the application filed under Section 5 of LIMITATION ACT . On the country, both the learned Counsels have appeared and submitted their written synopsis. Hence, the submission of the appellant that the first appellate Court has not recorded the evidence, cannot be accepted. On perusal of the impugned order, at paragraphs 10 to 24, the first appellate Court has observed as under:

(10) Point No.1:- The appellant has filed I.A.NO.1 seeking condonation of delay in preferring the appeal. On perusal of the judgment in FDP No.17/2017, the impugned judgment was rendered on 29.01.2019. Thus, the appeal could have been preferred within 30 days from that day excluding the period spent for obtaining certified copies. But the appellant has preferred this appeal on 8.12.2022. Therefore, there is a huge delay of 3 years 9 months 7 days i.e. 1378 days in preferring the appeal.

(11) It is the argument of learned advocate for the appellant that, the length of delay is not the criteria for allowing or disallowing the application of condonation of delay and sufficient cause is the only criterion. In support of his submissions, he has quoted the judgment of Division Bench of Hon’ble Supreme Court in Sabarmati Gas Limited Vs. Shah Alloys Limited, 2023 LiveLaw [SC] 9 wherein it is held as under:-

“As relates to section 5 of LIMITATION ACT , showing sufficie