Dr. M. Shanthakumar vs Sri T. Palani Velu Alias Palani, Mrs. Mary Jacintha Mascarenhas and Mr. Terrance Mascarenhas

Ashok B. Hinchigeri, J.—There is a delay of 459 days in filing this appeal. Sri M. Chandra Chooda, the learned counsel for the appellant submits that the appellant was suffering from Type-II D.M., essential hypertension, 1HD post CABG status, Old CVA-1Ch ptd. w/o. fever cough expectoration, migraine, head ache, etc. It is because of the several ailments from which the appellant has been suffering, that he could not institute the appeal within the prescribed period of limitation. The learned counsel further submits that the respondent Nos. 2 and 3 have also filed R.F.A. No. 2002/2011 against the very said judgment and decree, which the present appellant has challenged in the instant appeal. He submits that the R.F.A. No. 2002/2011 is admitted and an interim order of stay is granted. He has also relied on the Apex Court''s judgment in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, to advance his submission that a liberal approach is required to be adopted while considering the application for condonation of delay. He submits that the expression ''sufficient cause'' used in Section 5 of the Limitation Act is elastic to enable the application of law to do even-handed justice to all the parties.

Sri Ramdas, the learned Senior Counsel appearing for Sri Abhilash Raju for the respondent No. 1 submits that the diabetes, hypertension, etc. are not so serious ailments so as to prevent a party from filing an appeal within the prescribed period of limitation. He submits that the appellant has filed this appeal only after receiving the notice in Execution Petition No. 315/2013 filed by the respondent No. 1 for enforcing the judgment and decree, dated 14.9.2011 passed by the Court of XVIII Additional City Civil Judge, Bangalore in O.S. No. 684/2002. He submits that the appellant has received the notice of the proceedings in Execution Petition No. 315/2013 on 2.3.2013 and appeared before the Execution Court on 4.3.2013; 17 days thereafter, that is, on 21.3.2013, this appeal is filed. He submits that the filing of this belated appeal is abuse of the process of law.

He submits that the medical certificates produced by the appellants, are all issued by Sathya Hospital, of which the appellant is the President and one of the Directors.

The learned Senior Counsel has relied on the Apex Court''s judgment in the case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, . Paragraph No. 26 of the said judgment relied upon him reads as follows:

We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.

He has also relied on the Apex Court''s judgment in the case of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, to contend that a liberal approach is required to be adopted in condoning delay of short duration; if the delay involved is inordinate, stricter approach is required.

Sri K.N. Phanindra, the learned counsel appearing for M/s. Hegde & Rao Associates for the respondent Nos. 2 and 3 indicates his no objection to the condonation of delay.

While condoning the delay, what weighs with the Court is not merely the period or length or duration of delay. If the sufficient cause is shown for approaching the court belatedly, the delay can always be condoned. In the instant case, serious health problems are faced by the appellant but prior to 2004. It is not in dispute that the appellant has diligently defended himself in the suit proceedings. After the decreeing of the suit on 14.9.2011, the appellant appears to be suffering from hypertension, diabetes, back-ache, etc. I find it hard to accept that these lifestyle disorders came in the way of the appellant filing the appeal within the prescribed period of limitation. The delay of 459 days in filing this appeal is not cogently or satisfactorily explained.

I therefore reject I.A. 1/13 for the condonation of delay. Consequently, the appeal stands dismissed. However, it is made clear that no opinion whatsoever is expressed on the merits of the claims of the appellant. Needless to observe that the appellant herein may use his position as the respondent No. 2 in R.F.A. No. 2002/2011. No order as to costs.