The right to appeal should not be curtailed solely on technical grounds of delay where it may lead to injustice, especially in light of extraordinary circumstances such as a pandemic.

JUDGMENT :

V. SRISHANANDA , J.

1. Heard Sri Kashinath J.D., learned counsel for the appellant and Sri P.N. Harish, learned counsel for respondent No.8.

2. The present appeal though listed for admission, taken up for consideration on merits having regard to the fact that the appeal of the appellant before the First Appellate Court came to be dismissed on the ground of delay and not on merits.

3. Brief facts which are utmost necessary for disposal of the appeal are as under:

3.1. A suit came to be filed in O.S.No.127/2017, which on contest came to be decreed by judgment and decree dated 21.12.2018.

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3.2. Being aggrieved by decreeing of the suit, defendant No.8 filed an appeal before the First Appellate Court in R.A.No.17/2022, challenging the validity of the judgment and decree passed by the Trial Judge.

3.3. The suit was in respect of agriculture land, measuring 3 acres in Sy.No.84 of Maligenahalli village, Kasaba Hobli, Shivamogga Taluk bounded on East by land belonging to Mutt, West by Anupinakatte road, North by Puradal main road and South by garden land of Kamal Jain.

4. Learned Judge in the First Appellate Court took into consideration that there was a delay of more than four years in filing the appeal, held an enquiry on the application seeking condonation of delay. Taking note of the principles of law enunciated by the Hon'ble Apex Court in the case of Basavaraja and another vs. Special Land Acquisition Officer , (2013) 14 SCC 81 , held that the reasons assigned for condonation of delay is not satisfactory and dismissed the application seeking condonation of delay and consequently dismissed the appeal as well.

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5. Being further aggrieved by the same, defendant No.8 is before this Court in this appeal on the following grounds:

 Judgment and decree passed by the trail court and confirmed by the appellate court is illegal since both courts have committed serious error where right of the appellant has been negated without giving an opportunity. Hence the judgment and decree passed by the both the courts are liable to be set aside.

 The Appeal under section 96 of the CPC is right of appeal and same has been dismissed on the ground of delay where right of the appellant pursuant to the registered sale deed has been affected by a person who is not having any right in the family of the defendant no-1 to 7. Denial of right to appeal on the ground of delay resulted in serious of miscarriage of justice.

 Apparently suit of the plaintiff is collusive suit at the instance of the defendant No-1 to 7 with an intention to defeat the right of the Appellant over the suit schedule property. Therefore the decree which has been passed without taking into note of the collusive approach trail court defeated the appellant's sale deed. The Appellate court inspite of the merit in the case of the appellant dismissed the Appeal on the ground of delay. In the event of delay may condoned by the appellate court and not filing of the written statement may permitted by the appellate court the matter would have been remitted back to the trail court since the delay in filing the appeal not created any third party right, further preliminary decree also not subjected for FDP proceedings, therefore the approach of the appellate court is bad in law. Hence, both the courts committed serious error in appreciating the evidence which resulted in denial of partition to appellate in respect of item No.1 schedule property.

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 It is submitted that the Plaintiff claiming that he is one of family member family