Jayaram vs Sri. Y.M. Narasappa

K.N. Keshavanarayana, J.—This appeal is directed against the judgment and decree dated 24.02.2007 passed by the XXIV Additional City Civil Judge, Bangalore in O.S. No. 2164/2003 dismissing the suit filed by original plaintiff therein viz., Jayaram. The appellants claiming to be the legal representatives of original plaintiff, Jayaram have filed this appeal and they are seeking permission to prosecute this appeal and have also sought for condonation of delay of 1861 days in filing this appeal. According to the appellants, the original plaintiff Jayaram was a wayward person and he did not prosecute the suit diligently, as a result, the suit came to be dismissed and though he lived for about four years after the date of judgment he did not choose to file an appeal and only after the death of the original plaintiff, the present appellants came to know of the dismissal of the suit and they took steps to file this appeal.

According to the appellants, they had no knowledge of the pendency of the suit as well as the dismissal of the suit and it was only after the death of the original plaintiff they came to know about the litigation.

As could be seen from the judgment under appeal, the original plaintiff prosecuted the suit by examining himself and also had produced documentary evidence. The witness examined on behalf of the defendant was also cross-examined on behalf of the plaintiff. This shows that the original plaintiff had seriously prosecuted the suit. However, the Trial Court on appreciation of evidence placed by the parties, found that the plaintiff has failed to prove his lawful possession over the suit schedule property. Consequently, the suit filed for permanent injunction came to be dismissed. There is absolutely no circumstance to indicate that the original plaintiff was a wayward person and had not properly prosecuted the suit. It is stated in the affidavit filed in support of the application that the original plaintiff died on 2.4.2011, whereas the suit came to be dismissed on 24.2.2007. From this it is clear that for four long years after the dismissal of the suit, the original plaintiff was alive and he did not choose to file any appeal. It is not the case of the appellants that the original plaintiff had no knowledge about the dismissal of the suit. Having regard to the fact that the original plaintiff was alive for four long years after the dismissal of the suit and since he did not choose to file any appeal, the appeal filed by the appellants at this stage cannot be entertained. The delay in filing the appeal has not been satisfactorily explained. This is not a fit matter to issue notice to the respondent on the application filed for condonation of such a long delay. The suit was one for relief of permanent injunction. If really the appellants feel that they are the owners of the property, they can still establish the said right by instituting a suit, if permissible under law. In this view of the matter, I find no merit in this appeal. Accordingly, appeal as well as the applications are rejected.