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2016 DIGILAW 689 (KAR)

SHUBHA K. v. VENKATAPPA VS VENKATAPPA CHIKKATHAMMAIAH

2016-09-14

A.N.VENUGOPALA GOWDA

body2016
ORDER : A.N. VENUGOPALA GOWDA, J. 1. This revision petition is directed against an Order dated 10.10.2006 passed in R.A. No.34/2002 by the Addl. District Judge and P.O., FTC - IV, Bengaluru Rural District, Bengaluru, dismissing I.A. No. 1 filed under Section 5 of the Limitation Act (for short, 'the Act') and consequently, rejecting the appeal as time barred. 2. Brief facts needed for disposal of this petition are as under: (i) The petitioners had filed O.S. No.994/1995 in the Court of II Addl. Civil Judge (Sr. Dn.), Bengaluru Rural District. Bengaluru against the respondents. Written statements having been filed and the suit contested by defendant Nos.3 to 6, six issues were raised for trial. Oral and documentary evidence having been adduced by both parties, the Trial Court by a Judgment and Decree dated 18.03.2002, ordered dismissal of the suit. (ii) Assailing the said decree, R.A. No.34/2002 was filed in the District Court, Bengaluru Rural District. There being delay of 125 days in filing of the appeal, I.A. No.1 was filed under Section 5 of the Act. Said application having been contested by respondent No.5, enquiry was conducted. The 1st appellant got herself examined as PW-1 and got marked 6 documents. The evidence having been found to be not credible, by reason of the Order dated 10.10.2006, application was dismissed and consequently the appeal was dismissed as time barred. (iii) Challenging the aforesaid order, this revision petition was filed on 07.09.2012. There being delay of 2036 days in filing the revision petition, I.A. No.1/2012 was filed, under Section 5 of the Act. 3. Sri T. Seshagiri Rao, learned advocate contended that the impugned order is arbitrary and un-judicious. He submitted that the delay in filing R.A. No.34/ 2002 being marginal and having been explained, ought to have been condoned and the appeal decided on its merit. He further submitted that there being mechanical approach to the case by the Court below, the impugned order is liable to be set aside. 4. Sri T. Seshagiri Rao submitted that the delay in filing this revision petition was on account of the ill-health of the 1st petitioner, as she was suffering from gynaecological problems. He submitted that proof i.e., the discharge summary of the 1st petitioner has been produced to establish the fact of treatment obtained and consequently, her inability to meet the advocate and file the revision petition, within the prescribed period. He submitted that proof i.e., the discharge summary of the 1st petitioner has been produced to establish the fact of treatment obtained and consequently, her inability to meet the advocate and file the revision petition, within the prescribed period. Learned counsel submitted that the delay in filing this petition being bona fide and as no prejudice will be caused to the respondents, the delay is liable to be condoned. 5. Perused I.A. No. 1/2012 and considered the submissions made by Sri T. Seshagiri Rao. 6. Undeniably, R.A. No. 34/2012 was filed belatedly. I.A. No. 1 was filed for condonation of delay in filing the said appeal. The learned District Judge having found that sufficient cause has not been shown, dismissed the I.A. by reason of the order dated 10.10.2006. Assailing the said order, this revision petition was filed on 07.09.2012. There is delay of 2036 days in filing this petition. 7. The question for consideration is whether the affidavit filed in support of I.A. No. 1/2012 disclose sufficient cause for condonation of inordinate delay of 2036 days? 8. In Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 , Apex Court has held as follows: "In construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree-holder to treat the decree as binding between the parties and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. It is further necessary to emphasise that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party or its bona fides may fall for consideration." (Emphasis supplied) 9. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party or its bona fides may fall for consideration." (Emphasis supplied) 9. On the facts and in the circumstances of the present case, the petitioners have not shown any diligence in seeking remedy before this Court. R.A. No.34/ 2002 having been dismissed on the ground of bar of limitation, this revision petition, at least, ought to have been filed within the period of limitation or within a reasonable period. Except stating in para 6 of the affidavit of the 1st petitioner, that on account of her ill-health, she could not contact the advocate and as such the delay of 2036 days occurred, there is nothing material stated which came in the way of filing of this petition after lapse of 2036 days. The inordinate delay has not been explained. Medical certificate of Maruthi Hospital dated 26.09.2002 and discharge summary of the said hospital dated 26.09.2002 show that the 1st petitioner was under treatment for two months during 2002 and underwent treatment for about 3 months during 2005. R.A. No.34/2002 having been decided on 10.10.2006 i.e., long after the 1st petitioner was discharged from the said hospital, the enormous delay of 2036 days in filing this revision petition has not at all been explained. 10. In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556 : [1998(4) ICC (S.C.) 445], Apex Court, while considering a case of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, has held as under: "6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds." 11. In Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 : [2014(1) ICC (S.C.) 71), while considering a similar issue. Apex Court has laid down various principles. The relevant amongst them are the following: "21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.7. In Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 : [2014(1) ICC (S.C.) 71), while considering a similar issue. Apex Court has laid down various principles. The relevant amongst them are the following: "21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach. 22.4. (d) The increasing tendency to perceive delay as a non-serious mater and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 12. It is trite that sufficient cause is a condition precedent for exercise of discretion by the Court for condonation of delay. When the mandatory condition of showing of sufficient cause is not complied with and the delay is not satisfactorily explained and the bona fides established, the Court cannot condone the delay on sympathetic consideration. 13. In the present case, even if it is taken that the 1st petitioner had any difficulty, nothing prevented the 2nd petitioner from taking steps to file this petition within the period of limitation or within a reasonable period. As the delay is enormous and has not been convincingly explained and sufficient cause has not been shown, there is no justification to entertain this petition filed after enormous delay. In the result, I.A. No. 1/2012 being devoid of merit is dismissed. Consequently the revision petition having not been filed within the prescribed period, stands rejected.