Siddamma vs Jayashre

A.S. Pachhapure, J.—The appellants are the legal representatives of the second defendant in the trial Court have filed this appeal challenging the judgment and decree for partition granting 1/5th share in the suit properties to respondent Nos. 1 and 2 in item Nos. 1, 2, 4 to 12 in ''A'' schedule properties and item Nos. 2 to 5 in ''B'' schedule properties.

The facts reveal that respondent Nos. 1 and 2 were the plaintiffs in the trial Court instituted the suit for partition and separate possession of their share in the suit properties which are agricultural, lands and house property.

During the pendency of the suit, the second defendant-S.L. Lokeshwarappa died and the appellants are the legal representatives i.e., the wife and the daughter were brought on record. As no written statement was filed, the trial Court recorded the evidence and granted a decree for partition and separate possession of their share. Aggrieved by the judgment and decree, the appellants approached the Lower Appellate Court in R.A. No. 41/2008. There was a delay of 260 days in filing the appeal. The appellants filed I.A. No. 1 u/s 5 of the Limitation Act requesting to condone the delay. The application was objected. Therefore, the First Appellate Court recorded the evidence of appellant No. 1 as PW. 1 and on appreciation of the said evidence, has rejected the interlocutory application. Consequently, dismissed the appeal of the appellants as not maintainable. Aggrieved by the judgment and decree of the First Appellate Court, the present appeal is filed.

The following substantial question of law-raised for my consideration:

"Whether the First Appellate Court was justified in dismissing the application filed by the appellants to condone the delay of 260 days (eight months delay) in filing the appeal and in doing so, did not have a liberal approach to condone delay to advance the substantial justice to the parties and thereby committed an illegality in the impugned judgment and decree"?

Learned counsel for the appellants submits that appellant No. 1 is a women and on death of her husband, she was staying at the distant place. Though she obtained the certified copy of the judgment and decree, was not able to file an appeal in time. He submits that taking into consideration the delay of only 260 days in filing the appeal, the First Appellate Court to advance the substantial justice to the parties could have construed the cause putforth as sufficient to condone the delay. He submits that at the most, the First Appellate Court could have compensated the respondents herein by awarding some costs.

On the other hand, the learned counsel for the respondents supports the order of the First Appellate Court and submits that the appellants have not made out just cause to condone the delay.

Perusal of the material placed on record reveals that the husband of appellant No. 1 and the father of appellant No. 2 died on 21.10.2004. The appellant No. 1, the wife and appellant No. 2, the minor daughter were brought on record. The appellant No. 2 was aged about seven years at the time when she was impleaded as a party to the proceedings. The appellant No. 1 is her mother and also guardian.

Infact so far as appellant No. 2 is concerned, she being a minor and limitation does not turn against her, but at the same time, when the evidence of PW. 1 is looked into, who is the mother of appellant No. 2 except stating that she was brought on record and she engaged an advocate, proper reasons are not assigned by her in her evidence. When she was examined as PW. 1 except stating that she engaged an advocate to apply for a certified copy of the judgment and decree to file an appeal, she said that there is delay of 260 days in filing the appeal.

Though she assigned the reasons for the delay, the reason is not been substantiated by the appellants. Taking into consideration, the fact that appellant No. 1 is a widow and appellant No. 2 is a minor, the First Appellate Court could have given importance to these circumstances. Therefore, I am of the opinion that the First Appellate Court was not justified in dismissing the appeal by rejecting the interlocutory application filed for condonation of delay by not construing the cause aforesaid as sufficient cause.

There has to be a liberal approach for condoning the delay to do substantial justice to the parties. When there is few months delay, in the interest of both the parties, the appeal should have been heard on merits. The appeal is pending for about four years. Some rights have been accrued in favour of the respondents-. There will be some injustice. This injustice could be compensated by awarding heavy cost. Taking into consideration subject matter of the suit and the status of the parties as they are in a position to compensate the interest of justice would be met if the appellants are directed to pay a costs of Rs. 10,000/- and the matter may be remitted to the First Appellate Court to dispose of on merits.

Consequently, the appeal is allowed. The order passed on I.A. No. 1 filed before the First Appellate Court is set aside. The delay of 260 days in filing the appeal is condoned. I.A. No. 1 filed by the appellants before the First Appellate Court is allowed. The matter is remitted back to the First Appellate Court to dispose of the appeal on merits. The appellants shall pay the costs of Rs. 10,000/- to the respondents within a month from today. To avoid the delay, both the parties are directed to appear before the First Appellate Court on 15.09.2014 without awaiting for the notice. The First Appellate Court is directed to dispose of the appeal in accordance with law, preferably within six months from the date of communication of this order.

The appellants are at liberty to seek permission to file written statement before the First Appellate Court itself. Hence, I.A. No. 1/2013 is disposed of. I.A. No. 2/2013 is dismissed as not pressed. I.A. No. 1/2011 does not survive for consideration and hence, it is rejected.