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Judgment
Aravind Kumar, J. - Heard Sri. S. B.Patil, learned counsel appearing for appellants and Sri. M.S.Haravi, learned counsel appearing for respondents. Perused the records.
Defendants are calling in question the judgment and decree passed by Principal Senior Civil Judge, Gokak dated 11.02.2014 in R. A. No.57 of 2012, where under appeal filed by unsuccessful defendants came to be dismissed on the ground that appellants have not explained with sufficient cause the delay in filing the appeal and consequently dismissed the appeal by affirming the judgment and decree passed by Principal Civil Judge, Gokak in O.S. No.741 of 2(M)9 dated 01.10.2011, where under the suit filed by plaintiffs for partition and separate possession had been decreed.
It is the contention of Sri. S.B.Patil, learned counsel appearing for appellants that Appellate Court was not justified in dismissing the appeal on the ground of delay without considering the evidence available on record and on account of application filed by appellants under Section 5 of the Limitation Act, 1963 having been dismissed, the Appellate Court has not gone into the merits of the case and as such, he prays for judgment and decree passed by Appellate Court being set aside and matter be remanded back to Appellate Court for adjudication afresh on merits. He would also elaborate his submission by contending that appellants have very good case on merits, inasmuch as, the 3rd plaintiff undisputedly being the wife of 1st plaintiff does not have any right to claim share in the property and as such, Trial Court had committed a serious error in decreeing the suit in its entirety by granting share to the wife of 1st defendant - 1st appellant and as such, on merits also the judgment and decree passed by Trial Court is liable to be set aside. He would also contend that without there being valid service of suit summons on defendants before the Trial Court, an ex parte judgment and decree came to be passed and as such, same ought to have been interfered with by the Appellate Court by condoning the delay and examining the appeal on merits. On these grounds, he seeks for formulating the substantial question of law as formulated in the appeal memo and prays for being answered in favour of appellants.
Per contra, Sri. M. S. Haravi, learned counsel appearing for respondents would support the judgment and decree passed by the Appellate Court and contends that when appellants have undisputedly not explained the cause for delay in filing the appeal with sufficient cause and in fact there being no cause shown, Appellate Court was fully justified in dismissing the application for condonation of delay and consequently, appeal also being dismissed. As such, he contends that there is no error committed by the Appellate Court. Hence, he prays for rejection of the appeal by contending that there is no substantial question of law involved in dismissing the appeal.
Having heard the learned Advocates appearing for parties and on perusal of records as well as the judgment of the Appellate Court, it would disclose that the defendants being aggrieved by the judgment and decree passed by Trial Court, decreeing the suit for partition and allotting 4/15th share in the suit schedule property to the plaintiff Nos. 1 and 2 had filed an appeal in R.A. No.57 of 2012. Said appeal was filed on 08.11.2012, since there was a delay in filing the appeal, application under Section 5 of the Limitation Act, 1963 came to be filed. Since the delay was about 12 months, an enquiry was ordered and accordingly, to substantiate the cause for delay, 2nd defendant i.e., 2nd appellant entered the witness box and tendered her evidence. The lower Appellate Court having noticed that judgment and decree was passed on 01.10.2011 and appellants had appeared in the final decree proceedings i.e., F.D.P. No. 18 of 2011 on 31.10.2011 and thereafter they had kept quite till 03.11.2012 and after obtaining the certified copy of judgment and decree passed in O.S. No.741 of 2009 on 03.11.2012 and had filed the appeal on 08.11.2012 held that inordinate delay of 12 months had not been explained. Accordingly, Interlocutory Application for condonation of delay came to be dismissed and consequently appeal was also dismissed.
Having heard the learned Advocates appearing for the parties, this Court is of the view that following substantial question of law that would arise for consideration is:
"Whether in the facts and circumstances of the present case and the evidence available on record, Appellate Court was justified in dismissing the application for condonation of delay filed under Section 5 of the Limitation Act, 1963?"
A substantial question of law does not mean a question of general importance, but the words "substantial question" referred to in Section 100 of C.P.C. would mean a substantial question of law as between the parties in the case involved. If the decision turns on one way or other, on particular view taken in respect of law, a question of law is substantial between the parties. For this proposition, the judgment of Hon�ble Apex Court in the case of Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. reported in AIR 1962 SC 1314 can be looked up.
Further, the Hon�ble Apex Court in the case of Damadilal and others v. Parashram and others reported in AIR 1976 SC 2229 has held that if a finding of fact arrived at by ignoring important and relevant evidence would be bad in law and substantial question of law would arise.
Yet again in Jagdish Singh v. Natthu Singh reported in AIR 1992 SC 1604, the Hon�ble Apex Court has held that when the findings recorded by the Court of fact is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
Keeping these principles in mind, when the facts on hand are looked into, it would clearly disclose that the relationship between appellants and respondents is that of father and daughters namely the 1st appellant is the father and respondent Nos. 1 and 2 are daughters of 1st appellant. Respondent Nos.1 and 2 herein along with mother Smt. Tayawwa had filed a suit for partition and separate possession which resulted in an ex parte judgment and decree being passed by T rial Court. One of the prime contention which came to be raised by he defendants in the appeal was that suit summons were not duly served. It is in this background, appeal came to be filed. However, appeal that had been filed belatedly namely, after 12 months from the date of judgment and decree, namely on 08.11.2012, though judgment and decree passed by the Trial Court came to be passed on 01.10.2011. Since there was delay, an application under Section 5 of the Limitation Act, 1963 was filed seeking condonation and in the affidavit supporting the application for condonation of delay, 2nd appellant namely 2nd defendant has stated that they were not aware about filing of the suit and they came to know only when they received notice of final decree proceedings. Having said so in the affidavit, the cause for delay was sought to be explained in her evidence. She has stated in her examination-in-chief that defendants came to know about the ex parte decree only when the surveyor visited the spot and when they made enquiries with their Advocate and found that there was an ex parte decree. 2nd Appellant - 2nd Defendant has also stated that she is a rustic villager, not aware of the Court procedure and as such, there has been delay. Though fault cannot be found in the finding recorded by Appellate Court with regard to knowledge of the appellants about the proceedings, inasmuch as, appellants had appeared in the final decree proceedings on 30.11.2011, this Court cannot lose sight of the fact that appellants had not contested the matter thereafter. It is for this reason, this Court is of the considered view that cause for delay which has been explained by the 2nd appellant in her evidence, deserves to be accepted. As held by the Hon�ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others reported in AIR 1987 SC 1353 a valid not stand to benefit in approachitigant woung the Court belatedly and refusing to condone the delay of a meritorious case would result in substantial justice being sacrificed. Hence, this Court is of the considered view that the delay ought to have been condoned by the Appellate Court by putting the appellants to terms.
In that view of the matter, the substantial question of law formulated herein above, deserves to be answered in favour of appellants and on account of the Appellate Court having not delved upon merits of the case, this Court has also not examined other contentions raised by the learned counsel appearing for appellants. In view of the facts that the second appeal has been pending before this Court for the past 2� years and the delay is on account of appellants, it would be necessary to issue direction to the Appellate Court to dispose of the appeal within a time bound manner.
For the reasons afore stated, I proceed to pass the following:
ORDER
(a) Appeal is hereby allowed by answering substantial question of law in favour of appellants;
(b) The judgment and decree passed by the Principal Senior Civil Judge, Gokak in R.A. No.57 of 2012 dated 11.02.2014 is hereby set aside and Interlocutory Application filed under Section 5 of the Limitation Act, 1963 in R.A. No.57 of 2012 is hereby allowed on payment of cost of Rs.5,000/- payable by the appellants to respondents.
(c) Appeal is restored to file before Principal Senior Civil Judge, Gokak for being disposed of on merits and in accordance with law.
(d) Principal Senior Civil Judge, Gokak is directed to dispose of R.A. No.57 of 2012 expeditiously, at any rate within six months from the date of appearance of the parties which is fixed at 06.09.2016 without awaiting for any further Court notice from the Appellate Court.
(e) Both parties to co-operate with the Appellate Court for disposal of the appeal within the time frame and it is made clear that in the event of either of the parties were to seek for an adjournment without justifiable cause to the satisfaction of the Appellate Court, it would be at liberty to impose exemplary costs on such of those parties who seek for adjournment.