Gandhi vs Parasappa and Others

B. Veerappa, J.—The petitioner/plaintiff filed the above revision petition against the order dated 20.03.2014 on I.A. No. 1/2012 made in R.A No. 17/2012, allowing the application filed by the respondents-who are the appellants before the appellate court, under Order XLI Rule 3 read with Section 151 of the Code of Civil Procedure, 1908, with cost of Rs. 500/-, by condoning the delay in filing the Regular Appeal.

It is the case of the petitioner that he had filed a Suit in O.S. No. 143/2001 in respect of the property in question for permanent injunction against the respondents and after contest, the said suit came to be decreed on 10.11.2006. Against the said judgment and decree, respondents filed an appeal in R.A. No. 17/2012 after a lapse of five years two months 23 days, along with an application IA. No. 1/2012 for condonation of delay. Learned Judge after considering the application and objections by the present petitioner has allowed the application by the impugned order and condoned the delay in filing the appeal. Against the said order, the present Civil Revision Petition is filed.

I have heard the learned counsel for the parties to the lis.

Sri. R.K. Hatti, learned counsel for the petitioner, has contended that the impugned order passed by the appellate court condoning the delay of more than five years is erroneous and contrary to law and no sufficient reasons are assigned to condone the delay; on that ground alone, the impugned order passed by the appellate court is liable to be set aside.

Per contra, Sri. N.S. Kini, learned counsel for the respondents, has sought to justify the impugned order and contended that there were two suits filed. One by the respondent in O.S. No. 7/2003 for possession and another by the petitioner in O.S. No. 143/2001 for permanent injunction and a common judgment was passed on 10.11.2006; subsequently, the decree was drawn on 22.11.2006. Against the said judgment and decree, the father of respondents filed RA No. 142/2006 within time. Thereafter, after the death of respondents'' father, respondents filed a memo on 15.03.2012, stating that the appeal filed in RA No. 142/2006 may be restricted to O.S. No. 7/2003 and they may be permitted to file another appeal against O.S. No. 143/2001. The memo was allowed, permitting the respondents to file separate appeal. Therefore, learned counsel submitted that the delay is not intentional, but due to the reasons stated above.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is not in dispute that two suits were filed by the parties. O.S. No. 7/2003 is filed by the respondents for possession in respect of the same property and O.S. No. 143/2001 is filed by the petitioner for injunction in respect of the property in question. It is also not in dispute that a common judgment was passed on 10.11.2006 and decree was drawn on 22.11.2006 and admittedly, the father of respondents filed RA No. 142/2006 within the time against the judgment made in OS No. 143/2001. Subsequently, a memo was filed by the respondents on 15.03.2012 stating that RA No. 142/2006 should be confined to OS No. 7/2003 and respondents were permitted to file separate appeal against OS No. 143/2001. The said memo was allowed.

Considering the said admitted facts, the learned Judge by the impugned order has allowed IA No. 1/2012 holding that the applicants/appellants have made out a ground to allow the application for condonation of delay. After considering the entire material on record, reiterating the earlier two suits filed by the parties, has recorded that during the pendency of the regular appeal, i.e., O.S. No. 142/2006, the appellants realised that on technicality, they ought to have preferred two separate appeals. Accordingly, they have filed a memo in RA No. 142/2006 wherein the appellants have made a request to the Court to the effect that, the said appeal may kindly be restricted only to judgment and decree passed in OS No. 7/2003. In order to substantiate the said fact, the appellants had filed certified copies of judgment passed in RA No. 142/2006. After careful perusal of the said judgment and decree it reveals that the said court has considered the point with regard to the maintainability of the memo filed by the applicants in the said regular appeal. Accordingly, the said point was answered in the affirmative, wherein the Court has held that the appellant is the master of his own case and he has restricted his appeal to the extent of judgment and decree passed in OS No. 7/2003 and in the light of the observations, the said Court accepted the memo and allowed the said appeal and suit of the plaintiff OS No. 143/2001 was partly decreed.

The appellate court while considering the application, also considered the dictum of the Hon''ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 , wherein it is held as under:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk."

It is also worthwhile to mention here that the latest dictum of the Hon''ble Supreme Court while considering the delay in land acquisition matters in the case of Dhiraj Singh (D) Tr. Vs. Haryana State, (2014) 9 SCALE 441 , while considering the earlier case of Collector Land Acquisition Anantnag (Supra), has reiterated that, liberal approach has to be adopted while condoning the delay in filing the application.

Taking into consideration the facts and circumstances of the present case, that the impugned order passed by the appellate Court condoning the delay, permitting the appellants to proceed with the appeal on merits, is in accordance with law and by condoning the delay and permitting the respondents to contest the appeal, no prejudice will be caused to the plaintiff/present petitioner. Ultimately, the parties have to establish their respective cases based on merits of each case. Therefore, mere condonation of delay will in no way prejudice to the present petitioner. Therefore, taking into consideration the entire facts and circumstances of the case and also the law declared by the Hon''ble Supreme Court (supra), this Court is of the considered opinion that the impugned order passed by the appellate court condoning the delay is in accordance with law.

In order to compensate the delay in approaching the Court, it is appropriate to enhance the cost imposed by the appellate court to an extent of Rs. 1,500/- instead of Rs. 500/-.

In the result, except enhancing the cost of Rs. 1,500/- instead of Rs. 500/-, remaining order of the appellate court is confirmed. Accordingly, this Civil Revision Petition is dismissed.

In view of the dismissal of the petition, consideration of IA for stay does not arise.