Dankanachari vs Ganeshachari and Others

B.V. Nagarathna, J.—1. Appellant is the first defendant in O.S. No. 113/2000. He has challenged order dated 03.11.2014 passed by the Senior Civil Judge at Ranebennur on an application filed under Section 5 of the Limitation Act, 1963, seeking condonation of delay of two years and two months in filing appeal R.A. No. 61/2007, assailing judgment and decree dated 21.07.2003 passed in O.S. No. 113/2000.

For the sake of convenience the parties shall be referred to in terms of their status before the trial Court.

First respondent-plaintiff and the appellant and second respondent are brothers. They are the children of Mallarappa Kammar. Suit schedule property is their ancestral property. According to the plaintiff, on the demise of their father Mallarappa Kammar, suit property fell to the share of the plaintiff in the family partition. Plaintiff is in separate possession and enjoyment of the suit property in accordance with the family partition, that the name of the plaintiff and defendants respectively have been entered in the record of rights and other revenue records as per the varadi given by them with respect to the land, house property and open space which are the joint family properties. Ownership of the plaintiff is entered in the mutation register M.E. No. 645 as he is in physical possession and enjoyment of the suit schedule property, that he has been paying taxes to the gram panchayat and the defendant having no right, title and interest in the suit property when they started interfering with his peaceful possession and enjoyment of the property in July 2000 he was constrained to file suit seeking relief of declaration and permanent injunction.

Defendants though served with suit summons and notices they failed to appear, and although they had engaged a counsel, no written statement was filed on their behalf. Hence they were placed ex parte.

In support of his case, plaintiff examined himself as P.W. 1. He produced 18 documents which were marked as Ex. P. 1 to Ex. P. 18. On the basis of the said evidence the trial Court held that the plaintiff was entitled to the reliefs claimed by him in the plaint and accordingly decreed the suit by holding that the plaintiff was the absolute owner of the suit schedule property and the defendants are restrained from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. Judgment and decree is dated 21.07.2003. The second defendant, who died during the pendency of the proceeding and whose representatives were brought on record, have not assailed judgment and decree of the trial Court but the first defendant filed R.A. No. 61/2007 on 04.10.2005. Thus there was a delay of a little over two years in filing the appeal. He filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal. Evidence was let in on the said application. The first appellate Court has dismissed the application and consequently appeal has also been dismissed. It is against the said order that the present appeal has been filed.

I have heard learned counsel for the appellant. He contended that the written statement was not filed by the defendant in the suit due to bona fide reasons, they were under the impression that certain criminal proceedings pending between them had concluded and therefore it was not necessary for the present suit to continue. That they were not aware of the fact that they had been placed ex-parte. The appellant on coming to know about the judgment and decree took steps to get certified copy of the judgment and decree and has filed the appeal thereafter. That there were bona fide reasons for the delay in filing the appeal. The first appellate Court ought to have taken a liberal view in the matter and condoned delay. On account of the dismissal of the application for condonation of delay filed by the appellant, the appeal has also been dismissed. Consequently, the appellant has lost the right to contest the appeal. He therefore submitted that substantial questions of law would arise in the matter, calling for admission of the same, for a detailed hearing.

I have given my serious thought to the submissions made by the learned counsel for the appellant and also on perusal of the material on record. That, on perusal of the judgment of the trial Court it is noted at paragraph Nos. 2 and 7 that the defendants, when served with suit summons and notices appeared before the Court through their Advocate but have not chosen to file their written statement. The trial Court has held that if really the defendants had any right, title and interest in the suit property they would have produced documents and filed written statement in support of their defence. When they have failed to do so an adverse inference against the defendants was raised. The trial Court, however, considered evidence of the plaintiff, both oral and documentary and granted the relief to the plaintiff by decreeing the suit.

When the appeal was filed by assailing the judgment and decree, the first appellate Court has considered observations of the Hon''ble Supreme Court that when an application under Section 5 of the Limitation Act, 1963 is filed, it must be considered liberally considering the nature of the proceedings and if the appellant furnishes cogent and justifiable reasons for his failure to appeal in time, then the appeal must be considered on merits by condoning the delay in filing the appeal.

In support of the plea for condonation of delay the appellant herein had stated that he remained absent from the Court under the mistaken notion that the civil proceeding was closed after his acquittal in the criminal case and that his counsel had retired from the profession. These two grounds have been held to be not justifiable by the first appellate Court. In support of the application the appellant let in his evidence. In the affidavit he has stated that he was unaware of the judgment and decree of the trial Court, whereas in the cross-examination he has categorically admitted that, he has noted that the suit was decreed against him, he has also clearly admitted that even after passing of the judgment he had come to the Court several times in connection with other proceedings. He has stated that one year after the said suit was decreed he has obtained certified copy of the judgment. The first appellate Court has noted that there was a delay of one year in filing the application for the certified copy. Appellant has thereafter stated that he approached his counsel but his counsel prolonged the same.

On considering the said evidence, the first appellate Court has held that appellant was aware of the passing of the judgment and decree in the suit as he had admitted that he had initiated criminal proceedings against the respondents and their children in the year 2003-04, which is the year when the judgment and decree of the trial Court was passed. Even before that in respect of the other criminal proceedings he had attended the Court. Thus, admission on the part of the appellant have been held against him by the first appellate Court by observing that the appellant has not been diligent in the matter.

As far as the appellant having been placed ex parte in the suit, the first appellate Court has observed that the appellant being very well aware of the suit proceedings and being represented in the suit by a counsel did not file written statement and did not attend suit proceedings and thereafter was placed ex parte. The facts and circumstances of the case would show that the appellant has not been diligent in defending his suit, there were no reasons assigned as to why he did not file written statement, no steps were taken for getting the order placing him ex parte recalled. There were no justifiable reasons to condone the inordinate delay of two years and two months in filing the appeal. In the circumstances, the appellate Court dismissed the application.

I have considered judgment of the trial Court as well as the order of the first appellate Court in light of the submissions made by the learned counsel for the appellant. If only appellant had filed written statement before the trial Court and or had taken steps in getting the order placing him ex parte recalled, the situation would have been in favour of the appellant. The conduct of the appellant in not filing the written statement and thereafter not taking steps for getting the order placing him ex parte recalled and despite being aware of the judgment and decree of the trial Court, not taken steps to file the appeal in time, reveals lack of interest in the Court proceedings. The appellant was not that diligent insofar as the suit proceedings are concerned reveals an attitude of the appellant in taking the suit proceedings lightly by ignoring the same, whereas he had initiated criminal proceedings against the respondent and their children in the year 2003-04 when judgment and decree of the trial Court was passed.

The fact that the appellant was aware of the suit proceedings, judgment and decree of the trial Court but did not choose to file appeal in time has lead the first appellate Court dismissing the application seeking condonation of delay. Before the first appellate court, two reasons were given as to why the appeal could not be filed in time. Firstly, because the appellant was under the mistaken notion that the civil suit had concluded after his acquittal in the criminal case and secondly, on account of his counsel leaving the profession. Both the reasons have been held to be insufficient for condonation of delay by the first appellate court. If only the appellant had taken interest in the suit filed by the respondent herein and ascertained about the filing of the written statement and participating in the proceedings, then he would not have been placed ex parte in the suit. Secondly, if his counsel was retiring from the profession, then in all probability the appellant would have been informed about the same and the files would have been returned to him, then he could have taken steps to engage another counsel. The first appellate court did not believe these reasons to be true or for that matter sufficient to condone the delay in filing the appeal. In my view also, no sufficient cause has been shown to condone the delay of two years and two months in filing the appeal. The appellant cannot seek as a matter of right a remand of the matter to the trial Court so as to have one more opportunity to file written statement when the civil procedure code has been amended and Order VIII Rule 1 thereof has categorically specified a period of thirty days for filing the written statement. Rather, in the instant case the written statement was not filed at all and in my view the trial Court rightly placed the appellant ex parte. I do not think that this is a case where any indulgence can be shown to the appellant who has been remiss, both at the stage of original proceedings and also while approaching the first appellate court, as there are no strong reasons for doing so. In the result, no substantial question of law arises in the appeal. The appeal being devoid of merit is dismissed.