Smt. Gulabi vs Manju Bhovi

B. Veerappa, J.—This regular second appeal is filed by the 4th defendant against the judgment and decree dated 10.07.2013 made in unnumbered regular appeal on the file of the Senior Civil Judge and ACJM at Kundapura, dismissing the appeal on the ground of delay and laches confirming the judgment and decree of the Trial Court.

The present respondent No. 1 who is the plaintiff before the Trial Court had filed a suit for partition and declaration that alleged sale deed dated 30.06,1998 executed by defendant No. 1 in favour of defendant No. 4 is not binding on the plaintiff contended that the parties to the suit are governed by Hindu Mithakshara Law of Inheritance. That on 1.3.1974 and prior to that the undivided joint Mithakshara Family of the plaintiff consisting of father of plaintiff viz., Badiya alias Govinda Bhovi and his brother Venka Bhovi and certain other persons who were agricultural tenants were in actual cultivation and enjoyment of ''A'' schedule properties and certain other properties. The Land Tribunal, Kundapura had granted occupancy rights over the ''A'' schedule properties in favour of them for and on behalf of the family and thereafter, Form No. 10 registration certificate was also issued as per law. Thereafter, the said two branches had partitioned the said properties in which ''A'' schedule properties were allotted to the share of Govinda alias Badiya Bhovi branch. The said oral partition was subsequently reduced into written agreement dated 19.05.1983. The said Badiya alias Govinda Bhovi, and the plaintiff and defendant Nos. 1 to 3 were in actual possession and enjoyment of ''A'' schedule properties.

It is the further case of the plaintiff that after the death of said Badiya alias Govinda Bhovi, the plaintiff and defendant Nos. 1 to 3 have been in actual joint possession and enjoyment of ''A'' schedule properties. In fact the plaintiff is the De Jure Manager of the family after the death of his father. Defendants are now not co-operating with the plaintiff to cultivate the ''A'' schedule properties and to manage the same. Therefore he has been asking the defendant Nos. 1 to 3 to co-operate for partition of ''A'' schedule properties as per law. Even though they have agreed for the same they have been postponing the same and therefore on 11.1.1989, the defendant No. 1 told him that he had already sold and conveyed item No. 9 of ''A'' schedule property in favour of his wife-defendant No. 4 and he will not join with him for any partition etc. Therefore suit was filed for partition and separate possession.

The defendant Nos. 1 and 4 filed written statement. Defendant Nos. 2, 3, 5 and 6 were placed ex-parte. The defendants denied the entire plaint averments and contended that the suit filed by the plaintiff is bad for non-joinder of necessary parties and contended that Badiya alias Govinda Bhovi had 6 children namely Manja, Sheena, Smt. Sadu, Rama, Soolya, Smt. Chandravathi. After the death of the father, the entire properties were divided among the children as the properties were the self acquired properties. The defendants further contended that the plaintiff with a mala fide intention has suppressed the said legitimate share holder and has not made them as parties to the suit. Therefore the suit is liable to be dismissed for non-joinder of necessary parties and also contended that the suit properties were not tenanted properties of Badiya alias Govinda Bhovi and his brother Venka Bhovi, they have partitioned the said properties equally among themselves and they were enjoying their respective portion of the properties so partitioned and therefore contended that the plaintiff and defendant Nos. 2 and 3 have no right to question the validity of sale deed executed in favour of the 4th defendant and plaintiff has suppressed the true income from Item Nos. 1 to 8 properties. Therefore sought for dismissal of the suit.

Based on the rival pleadings of the parties the Trial Court framed the following issues :-

"1. Whether the plaintiff proves that he and the defendants are the members of undivided joint Mithakshara family?

Whether the plaintiff proves that the suit properties are the undivided joint-family properties of the plaintiff and defendants and in their joint possession and enjoyment?

Whether the plaintiff proves that he has �th share in the suit properties?

Whether the plaintiff proves that the sale deed dated 30.6.1998 executed in respect of item No. 9 of the suit property in favour of the 4th defendant in sham and fictitious documents?

Whether the defendants prove that the properties are the self acquired properties of Badiya Alias Bhovi and Venka Bhovi?

Whether the defendants prove that the sale deed dated 30.6.1998 is genuine one?

Whether the Suit is bad for non-joinder of necessary parties?

Whether the plaintiff is entitled to the relief sought for?

What order or decree?"

During the pendency of the proceedings the plaintiff filed impleading application to implead the daughters of Badiya alias Govinda Bhovi as defendants Nos. 4 to 6.

In order to substantiate the plaintiff''s claim the plaintiff was examined as PW.1 and marked the documents Exs.P1 to P12. Defendant No. 1 was examined as DW.1 and marked the documents Exs.D1 to D2.

After considering the entire material on record, the Trial Court recorded a finding that the plaintiff proved that himself and the defendants are members of the undivided Hindu Joint Mithakshara Family and suit schedule properties are undivided properties and they are in possession and enjoyment of the same and plaintiff is entitled to ⅙th share in the ''A'' schedule properties and also recorded a finding that the plaintiff proved the sale deed dated 30.06.1998 in respect of Item No. 9 of the suit properties. The said document is a collusive, benami and illegal document. The plaintiff has clearly proved that the said document is a fictitious document and not binding on the plaintiff. The Trial Court further recorded a finding that the defendants failed to prove that the properties are self acquired properties of Badiya alias Govinda Bhovi and his brother Venka Bhovi and the sale deed dated 30.06.1998 is genuine, and ultimately decreed the suit granting ⅙th share to plaintiff in ''A'' schedule properties.

Aggrieved by the said judgment and decree of the Trial Court, the 4th defendant alone filed appeal before the Senior Civil Judge, Kundapura who after hearing both the parties passed the impugned judgment and decree dated 10.7.2013 rejected I.A.I filed under Section 5 of the Limitation Act and consequently dismissed the appeal. Hence the present second appeal is filed.

I have heard the learned Counsel for the parties to the lis.

Sri. Nagaraja Hegde learned counsel for the appellant contended that the Lower Appel late Court committed error in dismissing the appeal on the ground of delay and laches without considering the case on merits, when the rights of the parties are involved in the immovable properties. Therefore, he sought to set aside the impugned order passed by the Lower Appellate Court.

Per contra, Sri. H. Jayakara Shetty learned counsel for the respondent Nos. 1, 3 and 6 sought to justify the impugned judgment and decree and specifically contended that no injustice is caused to the appellant -4th defendant and no proper explanation is offered to condone the delay and when throughout the proceedings her husband participated and as such she is aware of the facts, therefore he sought to dismiss the appeal.

This Court while admitting the above appeal framed the following substantial question of law :-

Whether the Lower Appellate Court is justified in dismissing the appeal only on the ground of delay and laches without reference to the merits of the case ?

I have given my thoughtful consideration to the arguments advanced by the learned counsel for both the parties and perused the entire material on record.

The relationship between the parties is not in dispute. The plaintiff filed the suit for partition and separate possession in respect of the immovable properties which are joint family properties. After contest the Trial Court decreed the suit and granted ⅙th share in ''A'' schedule properties. Aggrieved by the said decree the present appellant, who was the appellant before the Lower Appellate Court filed the appeal contending that it is not a joint family property, it was purchased by her from her husband under a registered sale deed in respect of suit Item No. 9. The Lower Appellate Court permitted the parties to adduce the evidence to condone the delay in filing the appeal. The appellant, who was examined as PW. 1 stated on oath that she could not contact her Advocate and her Advocate has not responded properly with regard to the case and she came to know about the order passed by the Lower Appellate Court later only, as she was residing 45 Kilometers away from Kundapura Taluk and therefore she could not contact her Advocate and she is not aware of the decree passed by the Trial Court and therefore, there was delay in filing the appeal and the respondents have not adduced any evidence nor produced any document to dispute the case of the appellant. The Lower Appellate Court considering the evidence and the law declared by the Hon''ble Supreme Court in the case of Poonam and others v. Harish Kumar and another reported in (2012) 1 KCCR S.No. 4 (SC) held that the appellant has not given proper explanation for the inordinate delay of 465 days and accordingly dismissed the appeal.

It is not in dispute that the parties are adjudicating their rights in respect of immovable properties to an extent of 14 acres 4 guntas of land and the Courts should not deprive the rights of the parties on the ground of technicality i.e., delay and laches when the appellant explained the reasons for the delay in approaching the Court, the Appellate Court should have imposed costs and ought to have provided an opportunity of hearing to decide the case on merits. It is to be seen that the Lower Appellate Court while ignoring the rights of the parties has technically dismissed the appeal on the ground of delay. The Lower Appellate Court failed to notice that ordinarily a litigant does not stand to benefit by lodging the appeal late. When substantial justice and technical consideration are fitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

(Emphasis supplied by me).

The Hon''ble Supreme Court while considering the provisions of Section 5 of the Limitation Act in the case of Collector (LA) v. Katiji, reported in 1987 (2) SCC 10 has held that :-

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act, 1963, in Order to enable the Courts to do substantial justice to the parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have be percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle."

Therefore, the Hon''ble Supreme Court has held that, while condoning the delay the courts should consider the substantial justice rather than technical considerations. In the present case, appellate court dismissed the appeal mainly on the delay of 126 days in filing the appeal based on the law declared by this Court and Apex Court on earlier decisions which are not applicable to the facts and circumstances of the present case. The law declared in the case of Collector (LA) v. Katiji, reported in 1987 (2) SCC 10 has been reiterated by the Hon''ble Supreme Court in the latest judgment in the case of Dhiraj Singh v. State of Haryana, reported in (2014) 14 SCC 127, and held that it is the obligation of the Court while dealing with the application for condonation of delay, the approach of the court to be pragmatic and not by pedantic the substantial rights of the parties cannot be allowed to be defeated on technical grounds by taking hyper technical views of self-imposed limitations."

The legislature has conferred the power to condone the delay by enacting Section 5 of the Limitation Act in order to enable the Courts to do substantial justice to the parties by disposing of the matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice - that being the life purpose for the existence of the institution of Courts, and the approach of the Court to be pragmatic and not pedantic - substantial rights of the parties cannot be allowed to be defeated on technical grounds by taking the hyper technical view of self-imposed limitations.

In the present case, the legal battle is between the parties in respect of immovable properties for partition and separate possession is that the parties should not lose his or her rights on technicalities merely because there was a delay of 465 days in filing the appeal. In fact the appellant has explained the delay by filing an application. The Appellate Court ought to have allowed the application and proceeded to decide the case on merits in order to provide an opportunity to cause substantial justice. The same has not been done in the present case by the Lower Appellate Court.

In view of the dictum of the Hon''ble Supreme Court and the rights of the parties involved in respect of the suit schedule properties, the parties should not be deprived of their rights in immovable properties on account of technicality, the case should be decided in respect of the property rights on merits based on oral and documentary evidence, but it should not be thrown away on technicality. Taking into consideration the entire circumstances of the present case, the substantial question of law framed has to be answered in ''negative'' holding that the Appellate Court is not justified in dismissing the appeal only on the ground of delay and laches without reference to the merits of the case.

It is also relevant to state at this stage that the plaintiff filed the suit in the year 1999 and suit came to be decreed on 28.2.2011 and the present appellant who was the appellant before the Lower Appellate Court filed the appeal in the year 2012 after lapse of 465 days. The appellant should have been more diligent to pursue her rights in respect of the immovable properties. The appellant asserted that her Advocate has not responded properly. She was a poor rustic Woman residing in the village. She was not aware of the legal proceedings, at the same time, plaintiff who was the decree holder has to be compensated for the delay in filing the appeal before Lower Appellate Court. This Court is of the considered opinion, that the matter requires to be remanded to the Lower Appellate Court to adjudicate the case on merits. At the same time, the plaintiff has to be compensated. Hence a sum of Rs.8.000/-is to be imposed on the appellant.

In view of the aforesaid reasons, the RSA is allowed. The impugned judgment and decree dated 10.07.2013 of the Lower Appellate Court is set aside. The application filed by the appellant before the Lower Appel late Court on LA.No. 1 under Section 5 of the Limitation Act is allowed. The delay of 465 days in filing the appeal is condoned subject to the condition that the appellant shall pay a sum of Rs.8,000/- to the defendants before the Lower Appellate Court and the matter is remanded to the Lower Appellate Court for fresh consideration on merits in accordance with law, without being influenced by any of the observations made during the course of this judgment.

Taking into consideration the pendency of the suit between the parties from the year 1999 it is appropriate to direct the Appellate Court to decide the appeal as expeditiously as possible, but not later than six months provided both the parties to the appeal shall cooperate. The parties are directed to appear before the Lower Appellate Court on 4th July 2016 without waiting for any notice from the Lower Appellate Court.