JUDGMENT : SREENIVAS HARISH KUMAR, J. 1. Heard the appellants counsel and the respondent's counsel on I.A. No. 1 of 2015 for condoning the delay of 764 days in preferring this appeal. Application is accompanied by an affidavit of appellant No. 1. 2. Appellant No. 1 has stated in the affidavit that she was looking after the case in the trial Court as her son, who is appellant No. 2, used to be out of Bengaluru most of the time in connection with his work. Her daughter decided to pursue remedy by filing a separate suit. Therefore, she alone was left with for taking further steps in the matter. She has stated that she was not keeping well, and she could not meet her counsel and obtain the copy of the order of dismissal of her application by the Executing Court. She was under great shock when she was informed that her application was dismissed without recording the evidence. Already, she was under depression as her Miscellaneous Petition had been dismissed. She has stated that she was under an impression that her daughter had preferred an appeal. Only when her daughter informed that she had not filed an appeal and that she had filed a separate suit, she decided to file this appeal. 3. Appellant No. 1 filed an additional affidavit on 17-1-2017. In this additional affidavit, she has given details of correspondence made by her with Bengaluru City Corporation seeking allotment of the house which is subject matter of the suit and the execution petition, etc. 4. In paragraph No. 6 of the affidavit, she has stated that she was completely under shock when Miscellaneous Petition was dismissed by the Executing Court. She thought that her daughter, who was staying with her, would follow up the matter. But, she did not take any action. She has further stated that she was suffering from high blood pressure and being treated for the said ailment for the last ten years. In November-2015, she had a fall and underwent operation for fracture of her hand. After returning to the house from the hospital, she was helpless for sometime and still undergoing treatment. She was totally unwell ever since the decision in the execution petition was given.
In November-2015, she had a fall and underwent operation for fracture of her hand. After returning to the house from the hospital, she was helpless for sometime and still undergoing treatment. She was totally unwell ever since the decision in the execution petition was given. Only when her daughter told that she had filed separate suit and was not interested in pursuing the case, according to the course that the lawyer had advised, she contacted her present counsel in the month of December 2015, she came to know that there was a great delay. She has stated that she is illiterate person and not well conversant with law and procedure involved. 5. Respondent's counsel has filed the statement of objections denying the truth in the affidavits filed by appellant No. 1. 6. Appellants' counsel submits that the appellants are staying in the house in respect of which the respondent filed a suit for declaration and possession. The Corporation had assured them that the said house would be allotted to them. Appellants were not made parties to the suit. Therefore, they did not come to know about the decree passed in the suit. They had every right to object the execution as they are very much interested in the suit property. Appellant No. 1 has shown sufficient cause for condoning the delay. He submitted that in the light of the facts and circumstances stated in the affidavit, this Court has to take lenient view to condone the delay. In support of his arguments, he referred to the judgments of the Hon'ble Supreme Court in the cases of: (1) State of Bihar and Others vs. Kameshwar Prasad Singh and Another, (2009) 9 SCC 94 (2) Collector, Land Acquisition and Another vs. Mst. Katiji and Others, (1987) 2 SCC 107 (3) Sri Talwar Kenchappa, Since deceased by his Legal Representatives vs. Sri K. Nabi Sab, RSA No. 5781 of 2011 7. On the other hand, the respondent's counsel submits that the appellants have not made out sufficient reasons for condoning the delay. In fact, appellant No. 1 was party to the suit. Her another name is Muniyamma, who is shown as defendant No. 4 in the suit. She was aware of the proceedings in the suit and execution case. She has given false reasons in the affidavit. Therefore, there are no grounds for condoning the delay. 8.
In fact, appellant No. 1 was party to the suit. Her another name is Muniyamma, who is shown as defendant No. 4 in the suit. She was aware of the proceedings in the suit and execution case. She has given false reasons in the affidavit. Therefore, there are no grounds for condoning the delay. 8. Having heard both sides, I am of the opinion that the appellant No. 1 has not made out sufficient cause for condoning the delay. She has suffered an order in the execution case. She states that her daughter told her that she would take action to file an appeal before this Court and when she did not file an appeal, she decided to prefer this appeal. Though in the fist affidavit, it is stated that appellant No.1 was not keeping good health, nothing is stated about her having had a fall in the month of November 2015. She may be aged, but it does not mean that she was not in a position to take action to prefer an appeal. In the additional affidavit, she states that she had a fall and thereby suffered fracture of her hand. For this reason, she underwent surgery. If this was the real reason, nothing prevented the appellant No. 1 from giving the same reasons in the affidavit filed in the first affidavit. Even there is no supporting document for having taken treatment for fracture. Therefore, it has to be stated that the reasons that appellant No. 1 has given in the affidavit filed for the first time and also in the additional affidavit cannot be believed. 9. Appellant No. 1 has stated that her son, i.e. appellant No. 2, will be out of Bengaluru most of the time in connection with his work. Even this reason cannot be believed. He may go out of Bengaluru, but it does not mean that he will always be out of Bengaluru. Nothing prevented the appellant No. 2 to prefer this appeal in time if appellant No. 1 was really not well and suffered a fracture on account of a fall. There is no explanation as to why appellant No. 2 did not take action. 10. It is true that as has been held by the Hon'ble Supreme Court, the Courts have to adopt liberal approach while deciding applications under Section 5 of the Limitation Act.
There is no explanation as to why appellant No. 2 did not take action. 10. It is true that as has been held by the Hon'ble Supreme Court, the Courts have to adopt liberal approach while deciding applications under Section 5 of the Limitation Act. But, at the same time, the Hon'ble Supreme Court has also held that if false reasons are given for getting rid of delay, the Courts must view the same seriously. The Supreme Court in the case of Pundlik Jalam Patil (dead) by LRs. vs. Executive Engineer, Jalgaon Medium Project and Another, (2008) 17 SCC 448 , it is held as below: "The Law & Judiciary Department as early as on 13.4.2000 i.e. to say within the period of 15 days from the date of the award of the Reference Court communicated its decision to acquiesce in the decision of the Reference Court and communicated the same to all the concerned including the beneficiary of the acquisition. It is not the case that the Executive Engineer did not receive the said communication. Having received the said communication, the respondent did not act in the matter and initiated any steps for filing the appeals if it was really aggrieved by the decision of the Reference Court. There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the Court. In our considered opinion, incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on its part by condoning delay. [See: (1993) 1 SCC 572 ]." (Underlining by me) 11. Therefore, I come to the conclusion that the reasons that appellant No. 1 has given for the delay cannot be accepted. She has given only false reasons. 12. For the reasons stated above, I.A. No. 1 of 2017 is dismissed. Consequently, the appeal is also dismissed.