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2022 DIGILAW 302 (KAR)

M. D. Ghouse v. Lalu

2022-03-04

NATARAJ RANGASWAMY

body2022
JUDGMENT Nataraj Rangaswamy, J. - This appeal is filed by the appellant in R.A. No. 15024/2013 on the file of V Additional District and Sessions Judge, Devanahalli, challenging an order dated 15.02.2016 by which an application filed by the appellant under Section 5 of the Limitation Act is dismissed and consequently, the appeal in R.A. No. 15024/2013 was also dismissed. 2. The parties shall henceforth be referred as they were arrayed before the Trial Court. The appellant was the defendant No. 13 while the respondent Nos. 1 to 7 were plaintiffs. 3. The respondents No. 1 to 7 filed O.S. No. 1818/2006 claiming 1/5th share in the suit properties. The appellant had purchased portions of the land bearing Sy. No. 171/2 under different sale deeds. The suit was dismissed in terms of the judgment and decree dated 15.10.2008. 4. Feeling aggrieved by the said judgment, the respondents No. 1 to 7 filed R.A. No. 217/2008 which was allowed in part in terms of the judgment and decree dated 09.11.2009 and the suit in O.S. No. 1818/2006 was decreed in part in respect of those properties that were not sold and the three portions of the land in Sy. No. 171/1 that was purchased by the appellant herein. 5. A Review Petition was filed by respondents No. 1 to 7 on the ground that 71/2 guntas purchased by the appellant herein was the subject matter of a proceeding before the Land Tribunal, by one of the family members and that the judgment and decree passed in R.A. No. 217/2008 deserves to be modified to that extent. The Review Petition was disposed off holding that the decree for partition in O.S. No. 1818/2006 was subject to the outcome of the proceedings before the Land Tribunal in respect of that 71/2 guntas. Thereafter F.D.P. No. 15/2010 was filed by respondents No. 1 to 7 herein to enforce the decree in R.A. No. 217/2008. The Final Decree Court appointed a Commissioner for division of the properties who submitted a report which encompassed the properties purchased by the appellant which was excluded in the preliminary decree. Though the appellant objected to the said report, the Trial Court accepted the report and ordered drawing up of final decree in terms of the order dated 16.10.2014. 6. The Final Decree Court appointed a Commissioner for division of the properties who submitted a report which encompassed the properties purchased by the appellant which was excluded in the preliminary decree. Though the appellant objected to the said report, the Trial Court accepted the report and ordered drawing up of final decree in terms of the order dated 16.10.2014. 6. Being aggrieved by the aforesaid order dated 16.10.2014, the appellant filed R.A. No. 15024/2013 belatedly and filed an application under Section 5 of the Limitation Act. It was contended by the appellant herein that he was suffering from high blood sugar and during the second week of December 2014 he fell ill and was advised to undergo a blood test which revealed that he was suffering from Typhoid. The appellant placed on record a report of a diagnostic laboratory and medical certificates and contended that the delay was due to a reason beyond his control. He also placed on record a discharge summary issued by Lakshmi Multi-Speciality Hospital. The First Appellate Court recorded the evidence of the appellant and held that there was some mis-match in the medical records and that some of the documents were tampered. The First Appellate Court held that if the appellant suffered illness, he must have mentioned it in the affidavit filed in support of the application for condonation of delay. It held that the documents produced by the appellant did not correspond with the affidavit, and therefore, rejected the application and consequently dismissed the appeal. Being aggrieved by the aforesaid order, the present second appeal is filed. 7. The learned counsel for the appellant submitted that there were documents which indicated that the appellant was prevented by sufficient cause in not filing the appeal in time and the First Appellate Court ought to have considered the same liberally, having regard to the fact that substantial property rights of appellant are involved. 8. Per contra, the learned counsel for respondents No. 1 to 7 submitted that the appellant was not able to convince the Trial Court about the sufficiency of the cause shown. He also submitted that even if the appeal is allowed, the appellant would not be benefited in any manner since the Land Tribunal has rejected occupancy rights, and therefore, the property claimed by the appellant is available for partition. 9. I have considered the submissions made by learned counsel for the parties. He also submitted that even if the appeal is allowed, the appellant would not be benefited in any manner since the Land Tribunal has rejected occupancy rights, and therefore, the property claimed by the appellant is available for partition. 9. I have considered the submissions made by learned counsel for the parties. 10. The order passed by the Final Decree Court in F.D.P. No. 15/2010 was on 16.10.2014. The appellant claimed that he was suffering from blood sugar, Arthritis and during second week of December 2014 he was diagnosed to be suffering from Typhoid. Subsequently, he was admitted at a Multi-Speciality Hospital from where he was discharged. The discharge summary discloses that appellant was an inpatient between 13.01.2015 to 14.01.2015 which was subsequent to the impugned order dated 16.10.2014. The First Appellate Court could not have considered these documents in a piercing manner, but must have taken into consideration the age of the appellant as well as the probability that could have suffered from such diseases which prevented him from filing the appeal in time. These are all the facts that the First Appellate Court must have considered liberally, having regard to the fact that the rights of the appellant are at stake. It is indeed a matter of ordinary common sense that a man with reasonable prudence would not let go off his property, without a fight, that too when it is before a Court of law. 11. In that view of the matter, this appeal is allowed. The impugned order passed by the First Appellate Court in R.A. No. 15024/2013 dated 15.02.2016 is set aside. The delay in filing the appeal is condoned. The appeal is remitted back to the First Appellate Court which shall now dispose the case on merits. It shall also take into consideration the subsequent events averred by respondents No. 1 to 7 while considering the case of the appellant. Parties shall appear before the First Appellate Court on 30.03.2022.