K. Duraiswamy vs Smt. K. Rukmini

A.N. Venugopala Gowda, J.—In a suit for partition filed by the first respondent, the appellants were defendant Nos. 2 and 3. Common written statement was filed by defendant Nos. 1 to 3 and the plaintiff''s claim for partition and separate possession of the suit property was opposed. Based on the pleadings, issues were raised on 07.02.2004. Plaintiff got examined herself as PW1 and marked two documents, as Exs.P1 and P2. Defendants did not lead any evidence. After hearing the arguments, suit was decreed on 19.09.2006 and the plaintiff was held entitled to ⅕th share in the suit schedule property.

Assailing the said decree, this appeal was filed on 09.01.2013, with a delay of 2214 days. To condone the said delay, LA.No. 1/2014 was filed.

The first appellant has sworn to the affidavit filed in support of the prayer in I.A.No. 1/2014 The main reason assigned is that the deponent was employed in NGEF. and the said establishment was closed during the year 2002 and thus, he became jobless and was doing piece work job all over India and in that process he used to stay outside for 15 to 20 days in a month and therefore, he could not concentrate on the pending suit. It was stated that when a notice of FDP No. 25015/2011 was received during February 2012, the passing of impugned decree became known and this appeal was filed.

Heard Sri. K. Murthy, learned advocate and perused I.A.No. 1/2014. Learned advocate submitted that the reason for delay in filing the appeal being bona fide, the matter may be entertained for consideration.

Perused the record. Application for issue of certified copy was filed on 28.02.2012 and die copy was issued on 28.03.2012. This appeal was filed on 09.01.2013 and there is delay of 2214 days.

There is no explanation of whatsoever nature offered, as to why appellant No. 2 did not lake steps to file the appeal within the prescribed period, even if it is taken that the appellant No. 1 was away from Bengaluru for certain duration. The deponent having been in Bengaluru, intermittently, no explanation has been offered for the inordinate delay. Even after the certified copy become available on 28.03.2012, the appeal was not filed immediately and there is long delay there afterwards also.

The principle of law of limitation is based on a sound public policy and therefore, in the absence of bona fide reasons, the application for condonation of delay should be strictly construed assumes significance.

In Esha Bhattacharjee v. Managing Committee of Raghunalhpur Nafar Academy and others, (2013) 12 SCC 649, several principles having culled out by the Apex Court, to be kept in mind, while dealing with an application for condonation of delay, principles (iv, v, viii, ix and x) of para 21 being relevant, the same read as under:

"21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6.(vi) It is to be kept in mind that adherence to strict proof should not: affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7.(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8.(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9.(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10.(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation."

When the said principles are applied to the case on hand, it is clear that there is failure on the part of the appellants in showing any diligence in filing the appeal. The delay being inordinate and in the absence of any valid explanation, the delay cannot be condoned. Since sufficient cause has not been shown and the appellants having acted negligently, I.A.No. 1/2014 is devoid of merit.

Consequently, I.A.No. 1/2014 being devoid of merit is dismissed and the appeal is rejected, as barred by the period of limitation.