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2022 DIGILAW 1129 (KAR)

Indo Farm Equipment Ltd. v. Andappa

2022-09-01

H.P.SANDESH

body2022
JUDGMENT 1. Though this matter is listed for admission, with the consent from both the sides the matter is taken up for its final disposal. 2. Heard the learned counsel for the appellants and the learned counsel for the respondent. 3. This second appeal is filed against the Judgment and decree of the dismissal of the appeal passed in R.A.No.28/2022, wherein, the appellate Court consequently did not accept the reasons for delay of 441 days in filing the appeal in coming to the conclusion that the appellants have not made out sufficient and reasonable grounds to condone the delay. Hence, the present second regular appeal is filed. 4. The main contention of the appellants counsel before this Court is that, even though the delay was properly explained by the appellants, the first appellate Court has committed an error in dismissing the appeal and the counsel also would submits that, the delay has been properly explained and due to COVID-19 pandemic, the appeal could not be filed within time and there was a delay in communicating the order passed in the original suit to the appellant and there was a delay in replying to the appellants by the Head Office, since the Head Office is situated at Himachal Pradesh and hence, it requires to be interfered and the matter requires to be considered by the first appellate Court on merits on re-appreciation of the material available on record. 5. The counsel appearing for the respondent counsel would submits that, the Judgment of the trial Court was passed in the month of March, 2019 and by that time, there was no COVID pandemic and COVID-2019 was affected in the month of March 2020 and during the said period, between March-2019 to 2020 the delay has not been properly explained and for the reasons mentioned in the application is also that, the order was communicated after more than six months and thereafter the same was intimated to the Head Office and even after communication of the order also not filed the appeal within time. The counsel also would submits that, the appellants herein have represented through their counsel and having the knowledge not filed the appeal, but only when the execution petition was filed and notice was ordered, in order to delay the execution proceedings, the appeal was filed after lapse of 441 days. The counsel also would submits that, the appellants herein have represented through their counsel and having the knowledge not filed the appeal, but only when the execution petition was filed and notice was ordered, in order to delay the execution proceedings, the appeal was filed after lapse of 441 days. The first appellate Court also after recording the evidence of the witnesses comes to the right conclusion that the delay has not been properly explained and dismissed the appeal. 6. Having heard the respective counsel and also the material on record, particularly the reasons assigned by the first appellate Court in paragraph No.13, the first appellate Court has taken note of the reasons for delay, wherein, an affidavit is sworn to, that the said order was communicated more than six months and thereafter the same was intimated to the Head Office and the Head Office did not give timely reply and apart from that, the first appellate Court also considered the evidence on record i.e. evidence of P.W.1 in paragraph No.14 and also in cross-examination answers elicited from the mouth of P.W.1 in coming to the conclusion that, first of all the appellant No.1 is not a party to the said proceedings and P.W.1 is working at appellant No.1 and not at the defendant No.1, whose name and address is shown in O.S.No.425/2015 and the suit was partly decreed and having considered the material on record comes to the conclusion that no sufficient grounds are made out to condone the delay of 441 days in filing the appeal and reasoned order has been passed while rejecting the application and consequently the appeal is also dismissed. 7. Having heard the appellant counsel and the main contention of the appellant counsel that the order was not communicated immediately after the Judgment and decree and the said contention cannot be accepted for the reason that the appellants have represented through their counsel and also admittedly the order was passed in the month of March, 2019 and the Pandemic-2019 was affected in the month of March-2020 and the delay between March-2019 to March-2020 has not been properly explained and it is the duty cast upon the appellants to explain each days delay in filing the appeal. 8. The Apex Court in the Judgment reported in AIR 2022 SC 332 [Majji Sannemma alias Sanyasirao Vs. 8. The Apex Court in the Judgment reported in AIR 2022 SC 332 [Majji Sannemma alias Sanyasirao Vs. Reddy Sridevi and others], wherein, taken note of the delay in filing the appeal in paragraph No.7.4 has made an observation that, the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect the rights of a party, but it has to be applied with all its rigour when prescribed by statute. It is further observed that, in case a party has acted with negligence, lack of bona fides or there is inaction, then there cannot be any justified ground for condoning the delay even by imposing the conditions. It is observed that, each application for condonation of delay has to be decided within the framework laid down by this Court and also the Court has to take note of the statute and if any appeal is filed which amounts to violation of statutory principles and showing utter disregard to legislature, the same cannot be a ground to condone the delay. 9. This Court also in the Judgment reported in 2018 (4) AKR 690 [Smt. Parvathamma and others Vs. Smt. Jayamma and another], wherein also observed that, plea of the defendants that their Advocate did not inform them regarding disposal of the suit for partition and separate possession and it came to their knowledge only after proclamation notice was issued. Parties required to be diligent in prosecution of the proceedings and duty is cast upon the parties to enquire with their legal counsel regarding progress of proceedings, not enquiring regarding stage of litigation reflects negligent attitude and hence, Court comes to the conclusion that no sufficient cause for condoning the delay is explained in filing the suit. This Court also in the Judgment reported in AIR 2019 KARNATAKA 119, [Lokappa Vs. This Court also in the Judgment reported in AIR 2019 KARNATAKA 119, [Lokappa Vs. Smt. Shekavva and another] while considering the appeal i.e. the first appeal comes to the conclusion that, the delay of 696 days in filing the appeal - Plea that the appellant was not able to move out of his house as he was suffering from hypertension and arthritis not found to be true and bonafide - Appellant would have filed appeal in time, if he had really suffered by Judgment and decree - In absence of sufficient cause, delay not liable to be condoned. In the case on hand also, the appellant has suffered the money decree and admittedly the appellant is a company and represented through a counsel and already I have pointed out that delay of one year from the Judgment and Decree in between March-2019 to March-2020 has not been explained and sufficient cause has not been shown and pandemic of COVID-19 affected only after March-2020 and hence, the same cannot be a ground and apart from that the Head office has not properly replied to the intimation given by the appellants is also not a sufficient ground to condone the delay and the first appellate Court also after recording the evidence of P.W.1, first of all he is not a party to the lower Court proceedings and the first appellant is not a party to the lower Court proceedings and the same also taken note of it and the party who represented before the trial Court has not been examined and assigned the reasons for not accepting the cause shown by the appellant and apart from that it is only a money suit decree and claim was made for recovery of the amount with interest and when the appellants are not diligent in prosecuting the matter and sufficient reasons are not given, I do not find any material to admit the second appeal and to frame any substantive question of law, since there was an inordinate delay of 441 days in filing the appeal and also it is found on record that, only after the receipt of notice of filing of the execution petition only, an attempt was made to approach the appellate Court to condone the delay and hence, no merit to admit the second appeal. 10. 10. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.