Laxmi vs Narayan Manjappa Kodiya and Others

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 28/1999 on the file of Civil Judge (Jr. Dn.), has come up in this second appeal impugning concurrent finding of both the Courts below in dismissing her suit for declaration that suit schedule property is the absolute property granted in favour of her deceased husband. This appeal is filed with inordinate delay of 741 days. Hence, an application in I.A. No. 1/2013 is filed seeking condonation of delay.

Heard learned counsel for the appellant and perused the affidavit filed in support thereof. On going through the same it is seen that in paragraph No. 4 of the affidavit there in an attempt to explain reason for the delay in filing of the appeal which indicate that after the certified copy was secured by the counsel appearing for the appellant in the lower appellate Court, he sent the same to the appellant with advise to file an appeal before this Court. Thereafter she could not come to Dharwad immediately for the reason that she fell sick and as advised by the Doctor she has to take treatment. Therefore, she could not file appeal in time. It is also stated that she could not come to Dharwad immediately for filing appeal due to financial constraints also.

On going through the material on record it is clearly seen that the counsel appearing for her in the lower appellate Court has secured the certified copy in the month of September 2011, i.e., within one month from the date of judgment passed in R.A. No. 326/11. Her appeal is filed on 18.12.2013. With this it is seen that there is a gap of nearly 2 years and one month, between the date of receiving certified copy of judgment in R.A. and the date of filing this second appeal. In the affidavit she does not say what was the nature of illness and where she has taken treatment and how long she was bedridden. There is no reference as to when she received copy of the judgment and when she attempted to meet the counsel at Dharwad for filing of the appeal. With this it is clearly seen that there are no acceptable reasons for condoning inordinate delay of 741 days in filing this second appeal. There is an attempt to keep the above appeal pending which is filed against concurrent findings of both the Courts below.

This Court having found that no proper reason is assigned for condonation of delay felt that merit of the case is required to be looked into. In the event of appellant has an excellent case on merit and she has suffered serious injustice which is required to be considered in this second appeal, this Court on technicalities cannot dismiss this appeal and deny her right to seek rectification of error if any committed by both the Courts below. Hence, judgments of both the Courts with reference to the grounds urged are looked into.

On going through the same it is seen that plaintiff seek title to the suit property by way of declaration on the ground that suit schedule property was granted in favour of her husband. Incidentally, defendant''s name and name of the plaintiff''s husband is one and the same. The defence which is taken by the defendant is that the suit land is not granted in favour of plaintiff''s husband but it is granted to him on an application filed by him seeking such grant. According to him, the plaintiff by taking advantage of similarity in his name with that of her husband has produced the grant order as if it is passed in favour of her husband. However, she has not produced copy of the application filed by him seeking grant of the land. On the contrary the defendant in the original suit who had taken defence that the suit land was granted in his favour has succeeded in the proceedings, by demonstrating that, it is he who filed an application for grant of suit land in his favour, on the basis of which suit land is granted to him is proved beyond all reasonable doubt. Hence, both the Courts declined to accept the plaintiff''s plea that she is the owner of the suit schedule property and also declined to grant the relief of declaration.

On going through the judgments of both the Courts below, this Court feel that the inordinate delay of 741 days even if condoned and this appeal is taken up for consideration, there are no grounds to admit this appeal in as much as no substantial question of law arises for consideration. In that view of the matter, this Court feel issue of notice on I.A. No. 1/13 filed seeking condonation of delay would be an exercise in futility. Hence, I.A. No. 1/13 filed seeking condonation of delay of 741 days is dismissed and consequently the appeal also stand dismissed.