Vishwanath Basappa Mutagi vs Basappa Ulavappa Mutagi

A.N. Venugopala Gowda, J.—Respondents 4 and 5 were the plaintiffs in O.S. No. 140/2006 on the file of the Court of Additional Senior Civil Judge, Saundatti. Appellant was defendant No. 2 in the said suit. Respondents 1, 3, 6 and 7 were the other defendants in the suit. Suit was filed to pass a decree for partition and separate possession in respect of the plaint schedule properties. Defendants 2 and 6 filed separate written statements. Defendant No. 1 filed additional written statement. Appellant/defendant No. 4 and respondent No. 7/defendant No. 5 adopted the written statement and additional written statement filed in the suit. After trial, the learned Trial Judge, by a judgment dated 13.4.2010 decreed the suit in part, awarding 1/7th share in the property bearing Block No. 59/1 situated at Naduvinhalli village,. Taluka: Saundatti and property bearing Municipal No. 3004 situated at Saundatti. The claim made for partition in respect of property bearing Municipal No. 3004 situated at Saundatti and Plot No. 62/B in Block No. 109 of Hiremalligwad village, Taluka Dharwad, was dismissed. Plaintiffs/respondents 4 and 5 herein, questioned the said decree by filing an appeal before the Vacation District Judge, Belgaum in VRA No. 6/2010. The said appeal was subsequently registered as R.A. 185/2010 in the District Court at Belgaum. Respondents 4 and 5/appellants in R.A. 185/2010, withdrew the said appeal on 1.7.2010.

Appellant preferred R.A. 252/2010 questioning the decree dated 13.4.2010 passed in O.S. 140/2006 by the Additional Senior Civil Judge, Saundatti on 8.7.2010. There being delay in filing of the said appeal, I.A. 1 was filed on 14.7.2010, seeking condonation of delay. Respondent No. 2/defendant No. 2 filed objections to I.A. 1. case was posted for enquiry. Appellant got himself examined as PW. 1. The learned lower Appellate Court Judge, considering the rival contentions and the record of the case, finding that sufficient cause for condonation of delay as having not been made out, after referring to a decision in the case in Office of The Chief Post Master General and Others Vs. Living Media India Ltd. and Another, rejected I.A. 1, and consequently, the appeal was summarily dismissed, by an order dated 9.8.2012. This appeal is preferred against the said order and decree.

The main reasons for rejection of I.A. 1 by the lower Appellate Court are:

(i) Actual extent of delay in preferring the appeal has not been specifically mentioned in the application.

(ii) The appellant being the respondent in R.A. 186/2010 filed by his brothers, though had an opportunity to file cross objection, had not preferred cross objection.

(iii) Appellant as PW. 1 having stated that he will examine his brothers before the Court, has not examined them.

(iv) The appellant though had engaged an advocate and filed written statement, had not entered the witness box and led evidence in the suit.

(v) There is a collusive arrangement between the appellant and his brothers, to prolong the matter in the Court.

(vi) It was not the case of the appellant that he was suffering from some serious illness and on account of that, he was prevented from preferring the appeal.

Sri M.S. Naganuri, learned counsel appearing for the appellant contended that the lower Appellate Court has taken a hyper technical view and has illegally rejected I.A. 1. He submitted that the delay in filing the appeal was not abnormal and the other side can be compensated by putting the appellant to terms. He submitted that the reasons which have weighed with the lower Appellate Court to pass the impugned order/decree are wholly irrelevant and even otherwise the findings are perverse, since, without any material being brought on record, it has been held that there is collusive arrangement between the appellant and his brothers to prolong the matter. Learned counsel submitted that in the circumstances, the impugned order being wholly erroneous and illegal, may be set aside and the lower Appellate Court may be directed to decide the appeal on its merit.

Sri Santosh B Rawoot, learned counsel appearing for respondent No. 2 and Sri Jagadish Patil, learned counsel appearing for respondent No. 7, on the other hand, supported the impugned order. Sri Santosh B Rawoot submitted that the delay is not 45 days but 62 days and there is no credible explanation forthcoming for such an inordinate delay. He placed reliance on the decisions in the case of Sri Honnurappa Vs. R. Masthan, and Union of India and others Vs. Nrpen Sarma, AIR 2011 SC 1237 and contended that, there being culpable negligence, the finding of fact recorded by the learned Appellate Judge being neither perverse nor illegal, the impugned order has not given rise to a substantial question of law and the appeal being devoid of a substantial question of law, may be rejected.

This appeal was admitted to consider the following substantial question of law:

Whether the lower Appellate Court was justified in refusing to condone delay and in rejecting the appeal?

O.S. 85/1999, re-numbered as O.S. 140/2006 on the file of the Civil Judge (Sr. Dn.,), Saundatti was one for passing a decree of partition and separate possession. Suit was decreed in part. Plaintiffs filed V.R.A. 6/2010, subsequently, registered as R.A. 186/2010 in the District Court at Belgaum. The said appeal was dismissed as withdrawn on 1.7.2010. The appellant was one of the respondents in the said appeal. Since the plaintiffs themselves had questioned the Judgment and decree of the Trial Court, the suit being one for partition and separate possession, there was no need for multiplication of litigation either by filing an appeal or a cross-objection. The Appellate Court can even mould the relief in exercise of the power under O.41 R.33 of CPC.

Appellant filed R.A. 252/2010 on 8.7.2010 within few days of withdrawal of R.A. 186/2010. On account of the delay in filing of R.A. 252/2010 against the Judgment and decree passed in O.S. 140/2006 dated 13.4.2010, the appellant has not gained in any manner. There is no deliberate delay or culpable negligence. The statement of the appellant that he bonafide believed that R.A. 186/2010 would be pursued for decision on its merit and would be decided on its merits and hence he did not file an appeal or cross-objection cannot be doubted.

Merely because the extent of delay was not stated in the application or that a cross objection was not preferred in R.A. 186/2010 or on account of non-examination of a brother much less appellant not entering the witness box during the pendency of the suit to lead evidence cannot be the reasons to dismiss I.A. 1 filed for condonation of delay. The finding that there is collusive arrangement between the appellant and his brothers to drag on the matter is without any basis. The delay in filing the appeal being not inordinate and the appellant having acted bona fide in not filing appeal on account of the plaintiffs filing R.A. 186/2010, in my view, the lower appellate Court has taken a pedantic view in the matter.

Since valuable rights of the parties in respect of immovable properties is involved in the suit filed to pass a decree of partition and separate possession, on the totality of facts and circumstances of the case, in my opinion, the Court below ought to have been liberal and not rigid, and too technical, on the issue relating to condonation of delay and should have condoned the delay in filing the appeal, keeping in view the ratio of decision in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, wherein, the Apex Court made a significant departure from the earlier judgments and has held as follows:

The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to 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 subserves 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 percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

In the case of N. Balakrishnan Vs. M. Krishnamurthy, it has been held by the Apex Court as follows:

It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be fee to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

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Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded of public police. It is enshrined in the maxim interest: reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for this loss.

In the case of Vedabai @ Vaijayanatabai Baburao Pateil Vs. Shantaram Baburao Patil and Others, the Apex Court has held that a distinction must be made between the case where the delay is inordinate and the case where the delay is of few days and whereas, in the former case, the consideration of prejudice to the other side will be a relevant factor, in the latter case, no such consideration arises.

The Court below has not found that there has been a deliberate delay or negligence on the part of the appellant/applicant and the cause shown for the delay lacks bona fides. The suit being one for partition and separate possession, there being neither negligence nor lack of bona fides, much less the appellant/applicant having gained on account of belated filing of the appeal, in the factual matrix of the case, delay being only of few days and nor inordinate, the cause shown being sufficient cause, ought to have accepted and delay condoned. In the said view of the matter, the Trial Court is not justified in passing the impugned order dismissing I.A. 1 and consequently, rejecting the appeal. The decision in the case of Honnurappa (supra) on which learned counsel for the respondents placed reliance, has no application to the case on hand. It was a case of negligence and hence, it was held that sufficient cause was not made out for condonation of delay. The decision is clearly distinguishable.

In the result, the appeal is allowed. Order passed on I.A. 1 dated 9.8.2012 in R.A. 252/2010 by the Principal District Judge, Belgaum, is set aside. The appellant is directed to pay costs of Rs. 10,000/- to the respondents in the appeal. The said cost shall be deposited in the lower appellate Court within a period of 4 weeks from today. The cost shall be disbursed in equal proportion amongst all the respondents. Consequently, R.A. 252/2010 is restored for consideration and decision in accordance with law. The parties are directed to appear before the lower appellate Court on 23.3.2013 and receive further orders. The lower appellate Court is directed to decide the appeal expeditiously since the suit is one for partition and separate possession and was instituted in the year 1999.