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Kasturi Bai & Others v/s Gurulingappa & Another

    Regular Second Appeal No. 7328 of 2012

    Decided On, 07 October 2017

    At, High Court of Karnataka Circuit Bench OF Kalaburagi

    By, THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

    For the Appellants: Umesh V. Mamadapur, Advocate. For the Respondents: --------



Judgment Text

(Prayer: This Regular Second Appeal is filed under Section 100 of the CPC praying this court to call for the records and set aside the judgment and decree dated 09.02.2007 passed in R.A.No.12/2005 on the file of the Civil Judge (Sr. Dn.) Basavana Bagewadi and etc.,)

1. Heard the learned counsel for the appellants. Perused the I.A.No.1/2012. Notice has been ordered on this I.A. to respondents No.1 and 2. The respondent No.2 reported to be dead. As such appeal abated against the deceased respondent No.2 vide order of this court dated 20.07.2015. The notice issued to respondent No.1(A) is held sufficient vide order of this Court dated 02.02.2017. In that context the learned counsel for the appellants argued on I.A.No.1.

2. In the affidavit filed in support of the application the learned counsel for the appellants by relying upon ruling reported in 2005 (4) KCCR 2281 in the case of State of Nagaland v/s Lipok AO and others, contended that, affidavit filed in support of the application if not contraverted by anybody, and in the affidavit specific grounds have been taken and genuine reasons have been stated for condonation of delay, such applications have to be considered magnanimously by the courts.

3. I have carefully gone through the application (IA.No.1) filed under Section 5 of the Limitation Act. There is an inordinate delay of 1989 days in preferring the appeal. At Para No.3 it is narrated that the First Appellate Court has passed judgment and decree on 09.02.2007. The appellants could not prefer an appeal within the stipulated period of limitation, due to lack of knowledge about the disposal of the appeal, by the lower appellate Court, due to poverty and financial constraints etc. It is further contended that the advocate engaged by the appellants before the First Appellate Court has not at all informed them about the disposal of the appeal. As such they were not at all aware about the same. Apart from that the respondents/defendants have also not acted upon it and have kept quite for all these years. Till today the revenue entries are standing in the name of appellants. Therefore, they claimed that they being poor persons having no fixed source of income have left their village long back with their husbands in search of coolie work to Ratnagiri in Maharastra State for their livelihood on account of frequent draught situation in their village for several years. Therefore, they were not able to get information from their advocate with regard to the disposal of the said appeal. They have also claimed that their advocate made enquiry on 15.02.2012. Thereafter application for certified copies applied, obtained the same and filed this appeal.

4. On perusal of the judgment of the Hon’ble Supreme Court in the above decision reported in 2005 (4) KCCR 2281 in the case of State of Nagaland /vs/ Lipok AO and others, the Hon’ble Apex Court has observed that;

'the condonation of delay, the proof by sufficient cause is a condition precedent for exercise of the extraordinary jurisdiction vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken in to account in using the discretion. The expression sufficient cause is adequately elastic to enable the Court 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. Unless want of bona fides of such inaction or negligence as would deprive a party of the protection of sufficient cause is proved, the application must not be thrown out or any delay cannot be refused to be condoned. It is further observed that there is no general proportion that mistake of a counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose.'

5. Therefore, in view of the said decision the party must establish to the satisfaction of the Court that, there was no such inaction or negligence on the part of the appellants in prosecuting the appeal before the trial Court. They must prove under what circumstances they had no knowledge about the pendency of the appeal and as well as disposal of the appeal. Of course in view of the said decision the negligence on the part of the advocate may not be sufficient cause for condonation of delay. However, it should be established that advocate has not performed his duty in issuing notice or information with regard to the disposal of the case.

6. In the affidavit it is not stated that whether they have made any enquiry with their advocate at any time for a period of 5 years after disposal of the appeal or during the pendency of the appeal and whether there was any letter correspondence between them and advocate. They contended that responsibility solely on the part of the advocate that he has not informed the party with regard to the disposal of the appeal. Further added to the above it is a ground specifically taken up by appellants that they went in search of coolie work to Ratnagiri in Maharastra State for their livelihood. In such an event it cannot be contend about any negligence of their advocate, because the appellants must have given some address at the time of filing of the appeal to their counsel and subsequently they might not have been given their changed address to their advocate for communication. The advocate who handled their case is not been examined and no affidavit of the advocate is filed in order to ascertain what exactly the communication between the appellants and their counsel appeared before the First Appellate Court. Therefore, in the absence of such material the said allegation made against the advocate is not tenable.

7. Though it is urged that the appellants are poor and they had been to Maharastra State in search of coolie work particularly to Ratnagiri. But they have not produced any material to prove this particular aspect nor any affidavit is placed before the Court to substantiate the same. The affidavit filed in support of the application is not at all supported by any material documents to ascertain what exactly the social status of the appellants.

8. The allegations made in the affidavit throwing the entire burden upon their advocate who appeared before the First Appellate Court is remained as allegations only, but not established before this Court. There is inordinate delay of 5 years. It is not a small delay whereas the Court can magnanimously consider the same. In order to establish bonafides the appellants instead of making their efforts to ascertain about the pendency of the appeal after the disposal of the appeal, they came before this Court with such explanation. The appellants have also not shown for 5 years what they were doing about their appeal and what care and caution they have taken to keep in touch in their advocate and also to instruct him to proceed with the appeal on merits. Therefore, there is serious inaction and ignorance on the part of the appellants in not even care to meet their advocate to ascertain about their case. Therefore, no b

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onafide ground available to the appellants. There is no material to show that appellants were prudent and cautious, so as to the extend the discretionary relief to condone such a long delay of 5 years. Though respondents have not filed any objections, but the grounds urged by the appellants are not sufficient to come to a conclusion that, the appellants have genuine reasons and for that reason they were prevented from filing the appeal before this Court for 5 years. 9. Under the above circumstances of the case, I do not find any strong reasons to condone such inordinate delay of 5 years in preferring the appeal. Hence, I.A.No.1/2012 deserves to be dismissed. ORDER Accordingly, I.A.No.1/2012 is dismissed. Consequently, appeal is dismissed as barred by limitation.
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