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2020 DIGILAW 940 (KAR)

Shivajirao S/o Gopalrao Yadav, Patil v. Harishchandra Dawalal Khot @ Nikkam

2020-06-01

N.S.SANJAY GOWDA

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JUDGMENT : 1. The defendant is in this second appeal. The plaintiff had filed a suit for declaration which was decreed by the judgment dated 02.11.2004. It is to be stated here that the defendant though filed his written statement did not participate in the matter thereafter and therefore the trial Court was constrained to decree the suit. As against this decree of the trial Court, an appeal was filed. However, the said appeal was belated appeal and there was a delay of 53 days in filing the appeal. 2. The appellate Court on consideration of the cause shown in the affidavit filed in support of the application, come to the conclusion that there was no sufficient cause made out to condone the delay and accordingly proceeded to dismiss the application filed for condonation of delay and consequently the appeal was also dismissed. It is against this dismissal, this second appeal is preferred. 3. The following substantial question of law arise for consideration in this second appeal; (a) Whether the appellate Court could have refused to exercise the judicial discretion vested in it in condoning the delay of 53 days? 4. The appellant in his affidavit filed in support of the application for condonation of delay has stated that he could not contact his counsel in time due to rush of work and due to the fact that he did no have leave to avail and hence it was not possible for him to come out to Athani not only to participate in the original suit proceedings but also to take steps to prefer the appeal. In my view, the appellate Court has erred in not considering the fact that the appellant was working in a sugar factory on shift basis and the distance between the sugar factory and Athani was 70 Kms and having regard to the fact that the appellant was working in the sugar factory on shift basis, the minor delay of 53 days ought to have been condoned. In my view, the appellate Court has erred in taking a very narrow view in refusing to condone the delay of 53 days thereby causing a miscarriage of justice. 5. Accordingly, the substantial question of law is answered in favour of the appellant and the delay of 53 days in filing the regular appeal is condoned. Consequently, the order passed on IA.No.1 is set aside. 5. Accordingly, the substantial question of law is answered in favour of the appellant and the delay of 53 days in filing the regular appeal is condoned. Consequently, the order passed on IA.No.1 is set aside. The delay in filing the appeal is condoned. 6. The matter is accordingly remitted back to the appellate Court for consideration of the appeal on merits. 7. Having regard to the fact that the litigation if of the year 1997, it is just and proper to direct the appellate Court to dispose of the matter as expeditiously as possible at any rate within a period of three months from the date of receipt of copy of this order. In view of the disposal of the appeal, interlocutory applications do not survive for consideration.