Sri Eshwarappa and Sri Thirthalingappa vs Sri K. Nagappa

A.N. Venugopala Gowda, J.—The appellants filed this appeal on 07.02.2007 assailing Judgment and Decree dated 08.12.2006 passed against them by the Civil Judge (Sr. Dn.), Harihar, in O.S. No. 53/2006 instituted by the respondent. Suit was decreed and the plaintiff was declared as the owner and possessor of suit properties and the defendants were permanently restrained from interfering with the possession and enjoyment of suit properties. The appeal having filed with defects, a peremptory order was passed on 26.06.2007. Defects having not been removed within the time allowed, the appeal stood dismissed. I.A. No. 2/2012 was filed to recall the said order and there being delay of 1931 days in filing I.A. 2/2012, I.A. 1/2012 was filed seeking condonation of delay. Emergent notice of I.As. 1 & 2 was ordered to be issued to the respondent on 10.10.2012. Notice was returned with postal shara ''party deceased''. I.A. 3/2013 was filed under Order 22 Rule 4 read with S. 151 CPC to permit the appellants to bring the legal representatives of deceased respondent on record. I.A. 2/2013 was filed under Order 22 Rule 9 read with S. 151 CPC to set aside abatement of the appeal. I.A. 1/2013 was filed under S. 5 of Limitation Act to condone the delay of 1490 days in filing I.A. 3/2013 i.e., to bring the legal representatives of deceased respondent on record. The proposed legal representatives having entered appearance through an advocate, filed the statement of objections to I.As. 1 to 3 of 2013. The sole respondent admittedly died on 05.10.2008. But, ninety days'' period and thereafter 60 days'' limitation period has passed without any application for setting aside abatement. The 2nd appellant came up with I.As. 1 to 3 of 2013 on 04.02.2013 for the said reliefs. Heard learned counsel on both sides and perused the record.

The above applications are required to be considered by keeping in view the ratio of decision in the case of Balwant Singh (Dead) Vs. Jagdish Singh and Others, wherein, it has been held as follows:

Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and application''s belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.

The parties are close relatives. The reasons assigned by the 2nd appellant for not filing I.A. 3/2013 within the prescribed period is that, since most of the time he was away from native place because of business commitments and during 2008-2012, he was residing at Yelahanka, Bangalore and was running a petty shop therein, he was not aware of the death of the respondent which he came to know recently after return of the notice sent to the respondent with endorsement ''party deceased''. He has stated that his brother was also not aware of the death of the respondent. The proposed legal representatives of the respondent have filed statement of objections and they have denied the material averments. In the statement of objections to I.As. 1 to 3 of 2013, it has been stated that no material has been produced in proof of the 2nd appellant running a petty shop at Yelahanka, Bangalore and that the 1st appellant who is the brother of the 2nd appellant was very much in Malligenahalli Village, Honnali Taluk and had the knowledge of the death of the respondent. They have denied the assertion of the appellants that the death of the respondent was not within their knowledge. The appellants filed an additional affidavit on 10 06.2013, in which the 1st appellant stated that he was not aware of the death of the respondent which he came to know recently since he was away from the Village for eking out livelihood. I do not find merit in the claim made by the appellants that they were not aware of the death of the sole respondent. It is not in dispute that the appellants and the respondent are close relatives and that the dispute is with regard to immoveable property. In the circumstances, it is difficult to conceive that the appellants did not know the death of the respondent for more than three years period. The appellants are literates and even according to them, are businessmen. The affidavits in support of I.As. 1 to 3 of 2013 do not make out any case showing that the 1st appellant was also not residing in the village and was away from his native place doing business in Yelahanka. It is only after the proposed legal representatives of deceased respondent filed separate statement of objections to I.As. 1 to 3 of 2013, additional affidavit of the 1st appellant was filed. The affidavits of both the appellants are bald in view of the facts and the close relationship of the parties and there being no material of whatsoever nature produced in proof of the appellants being away from their native place for more than three years period, I do not find the appellants having made out sufficient cause for condonation of inordinate delay in bringing on record the legal representatives of the deceased respondent or for setting aside the abatement.

Since no ground is made out for condonation of delay, the appeal having abated, I do not find any justification for setting aside the abatement. I.As. 1 to 3 of 2013 are dismissed. Consequently, appeal stands abated.

No costs.