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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF JANUARY, 2015

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

CIVIL REVISION PETITION NO.318/2012

BETWEEN: MR M RATHNAVARMA PADIVAL S/O LATE M N PADIVAL AGED ABOUT 80 YEARS MEHAR BUNGLOW, BALMATTA MANGALORE-575 001. ... PETITIONER (BY SRI.K CHANDRANATH ARIGA, ADVOCATE) AND: 1. MRS. M SHARADA R HEGDE AGED ABOUT 42 YEARS W/O DR. RAJESH HEGDE NMC HOSPITAL P.O BOX NO.6222, ABUDHABI U.A.E. LOCAL ADDRESS OF R1 COSMOS LANE, KADRI TEMPLE ROAD MANGALORE. 2. MRS. M. SRIDEVI A SHETTY W/O MR. ANIL PRASAD SHETTY VINAYA, 4163, 1ST FLOOR, 8TH CROSS A MAIN HAL 2ND STAGE BANGALORE.

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3. MRS. SHIBANI T SHETTY W/O TILAK DAS SHETTY NO.402, THRISANDYA APARTMENT DADA SAHEB PALKE ROAD DADAR EAST, MUMBAI. 4. MRS. RAJKAMAL N SEMITHA AGED ABOUT 39 YEARS W/O MR. NISHIKANTH SEMITHA NO.3, BUGATTI COURT MILL PARK, VICTORIA AUSTRALIA-3082 NO.1 TO 4 ARE REPRSENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR. KUMAR CHIKKAPPA ALVA AGED ABOUT 30 YEARS S/O U.T. ALVA KAVIRAJ, KADRI KAMBLA, D.K-575 001. 5. MR. NITHIN J SHETTY MAJOR, S/O J.A. SHETTY 301, DIANA APARTMENTS UPPER BENDOOR ROAD MANGALORE-575 002 D.K., …..RESPONDENTS (BY SRI. R RAJAGOPALAN, ADVOCATE) THIS PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 20.10.2011 PASSED ON I.A.NO.1 IN R.A.NO. ___/2010 ON THE FILE OF THE PRL. SR.CIVIL JUDGE & CJM, MANGALORE, ALLOWING IA NO.1 FILED UNDER SECTION. 5 OF LIMITATION ACT.

THIS PETITION BEING HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

I have heard the arguments of Sriyuths

G.Krishnamurthy and Srivatsa, learned Senior

Advocates appearing for petitioner and respondents

respectively.

2. Perused the order dated 20.10.2011 passed by

Sr.Civil Judge, Mangalore in allowing I.A.No.I on cost of

Rs.2,000/- in unnumbered R.A.__ of 2010 (now said to

have been numbered as 75/2014).

3. Facts in brief which has led to filing of this appeal

are as under.

4. Plaintiff filed a suit for permanent injunction in

O.S.No.111/1997 in respect of suit schedule property

against defendants. Said suit came to be decreed by

judgment and decree dated 23.07.1998. Being

aggrieved by said judgment and decree, an appeal came

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to be filed under Section 96 of CPC. Since, said appeal

was belatedly filed namely, it was presented beyond the

prescribed period of limitation, an application under

Section 5 of the Limitation Act came to be filed seeking

condonation of delay. Said application was resisted by

plaintiff by filing detailed statement of objections and

denying the averments made in the affidavit supporting

the application for delay. It was specifically contended

by plaintiff that a Misc. Petition No.17/1998 had been

filed by the defendants under Order 9 Rule 13 CPC for

setting same judgment and decree and said Misc.

Petition though came to be dismissed, defendants by

suppressing this fact had filed the appeal and as such,

it was contended that it is an abuse of the process of

Court. Hence, plaintiff sought for dismissal of the

application filed under Section 5 of Limitation Act, 1963

and also the appeal.

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5. Lower appellate Court having heard the learned

Advocates appearing for parties allowed the application

for condonation of delay on the ground that substantial

rights of the parties cannot be deprived under the guise

of technicalities. It came to be noticed by lower appellate

Court that plaintiff had admitted that he was not aware

that some of the respondents were residing outside

India as one of the grounds to condone the delay in

filing the appeal. On these grounds, interlocutory

application I.A.No.I filed under Section 5 of the

Limitation Act came to be allowed by Lower Appellate

Court on cost of Rs.2,000/- and Registry was directed

to register the appeal by order dated 20.10.2011 which

is assailed by the plaintiff in this revision petition.

6. It is the contention of Mr.G Krishnamurthy,

learned Sr.Advocate appearing for plaintiff that after

suit came to be decreed on 23.07.1998, a petition under

Order 9 Rule 13 CPC came to be filed by the defendants

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on 26.08.1998 which also came to be dismissed on

12.01.2001 and by suppressing this fact, Regular

Appeal came to be filed on 19.04.2010 along with an

application I.A.No.I under Section 5 of Limitation Act,

1963 seeking condonation of delay of 11 years 8 months

and 27 days in filing the appeal. He would also contend

that appeal in question itself was not maintainable

since an order of dismissal of the petition filed under

Order 9 Rule 13 CPC is an appealable order under

Section 96(2) read with Order 43 Rule 1(d) CPC and as

such, appeal filed by defendants challenging the

judgment and decree dated 23.07.2008 passed in

O.S.No.111/1997 is not maintainable. He contends

that present appeal as such is hit by principles of

resjudicata. In support of his submission, he has relied

upon following judgments:

1) AIR 2003 SC 3044

Surya Dev Rai Vs. Ram Chander Rai

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2) AIR 2003 SC 2434

Shivashakthi Co. Operative Housing

Society Vs. Swaraj Developers

3) ILR 2004 KAR 1594

Nagawwa Vs. Mallappa

4) 2004(1) KCCR 242

V.B.Nayak Vs. S.R.Narasimhamurty and others

5) AIR 2010 SC 3043

Balwant Singh (Dead) Vs. Jagadish

Singh & Others

6) (1979) 3 SCC 745

Dalbir Singh and Others Vs. State of

Punjab

7) (2012)1 MAHARASHTRA L.J. 918

Shri Nandkishor Kanhyalal Agrawal Vs. Dhule Municipal Corporation, The

Administrator Dhule Municipal Corporation and Deputy Commissioner Dhule Municipal Corporation

8) Order passed In C.R.P.No.419/2013

dtd. 9.12.2013.

Kishan Kumar Sharma Vs. Premavathi

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9) AIR 2011 SC 1199

Lanka Venkateshwarulu (d) by L.Rs

Vs State Of Andhra Pradesh & Others

7. Per contra, Srivatsa, learned Sr.Advocate would

support the order passed by the lower appellate Court

and contends that revisional jurisdiction should not be

exercised when a finding of fact has been recorded by a

subordinate Court and only in cases involving question

of jurisdiction that is, question regarding irregular

exercise or non-exercise of the jurisdiction or the illegal

assumption of jurisdiction by a Court are only amenable

to revisional jurisdiction and no other orders. In

support of this proposition, he has relied upon

judgment of Hon’ble Apex Court in the case of

MANINDRA LAND AND BUILDING CORPORATION

LTD., VS. BHUTNATH BANERJEE AND OTHERS

reported in AIR 1964 SC 1336.

8. He would further submit that when an exparte

decree is passed a defendant would have two options

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namely, either to file an appeal or file an application for

setting aside the judgment and decree by taking

recourse to Order 9 Rule 13 CPC. He contends that

mere opting to one of the modes namely, invoking Order

9 Rule 13 CPC would not preclude such defendant to

avail the substantive remedy of appeal provided under

Section 96 CPC and in the instant case, on dismissal of

application filed under order 9 Rule 13 CPC by the trial

Court, defendants have promptly approached the lower

appellate Court challenging the said exparte judgment

and decree and on account of there being delay in

presenting the appeal, application for condonation of

delay came to be filed explaining the cause for such

delay which came to be accepted by the lower appellate

Court and as such, he contends that contention raised

by the learned Sr.Advocate appearing for the plaintiff

that defendants are precluded from filing an appeal

challenging exparte judgment and decree should not be

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accepted. In support of his submission, he has relied

upon judgment of the Hon’ble Apex Court in the case of

BHANU KUMAR JAIN VS. ARCHANA KUMAR AND

OTHERS Reported in AIR 2005 SC 626.

9. Having heard the learned Advocates appearing for

the parties and on perusal of the order under challenge

and citations relied upon by the respective learned

Sr.Advocates, this Court is of the considered view that

following points would arise for consideration:

1) Whether the revision petition is

maintainable?

OR

Whether this Court exercising

revisional jurisdiction can set

aside the order passed by the

lower appellate Court condoning

the delay in filing the appeal or

not?

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2) Whether defendants ought to

have filed an appeal under

Section 96(2) of CPC r/w Order

43 Rule 1(d) of CPC against the

order of dismissal dated

26.08.1998 whereunder petition

filed by defendants under Order

IX Rule 13 CPC came to be

dismissed?

OR

Whether defendants could have

filed R.A.No.75/2014 under

Section 96 r/w Order 41 Rule 1

CPC even after dismissal of

Misc.Petition 17/1998 on

26.08.1998 and whether such

appeal namely, R.A.No.75/2014

was maintainable?

3) Whether lower appellate Court

was justified in condoning delay

of 11 years 8 months and 27

days in filing the appeal in the

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facts and circumstances of the

case?”

In order to adjudicate the points formulated herein

above, this Court is of the considered view that few facts

which would have direct bearing and impact are

required to be noticed chronologically and as such they

are tabulated herein below:

Date Particulars

05.02.1997 O.S.No.111/1997 filed by plaintiffs for relief of perpetual injunction

against defendants – 1 to 5.

23.07.1998 Suit came to be decreed as prayed

for.

26.08.1998 Misc.Petition No.17/1998 filed by

defendants – 1 to 5 under Order 9 Rule 13 CPC.

12.01.2001 Misc.Petition No.17/1998 came to be

dismissed.

19.04.2010 R.A.No.75/2014 (earlier unnumbered R.A.) filed along with application for

condonation of delay of 11 years 8 months and 27 days.

20.10.2011 I.A. filed under Section 5 of the

Limitation Act, 1963 came to be allowed and appeal – R.A. was ordered to be registered.

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RE: POINT NO.(1):

10. Learned Sr.Counsel appearing for respondent has

contended that present revision petition is not

maintainable and this Court in exercise of its revisional

jurisdiction under Section 115 CPC ought not to

interfere with the findings of fact recorded by a

subordinate Court. He has relied upon the judgment of

the Hon’ble Apex Court in the case of MANINDRA LAND

AND BUILDING CORPORATION LIMITED vs

BHUTNATH BANERJEE AND OTHERS reported in AIR

1964 SC 1336. In the said case, suit for recovery of

money due under a mortgage deed filed by the plaintiff

came to be decreed by passing an exparte preliminary

decree and subsequently final decree also came to be

passed. The first application for execution of the decree

came to be dismissed for default and when second

application for execution of the decree came to be filed,

defendant’s legal heirs filed objections under Section 47

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of CPC disclosing the death of the original defendant. It

is thereafter decree holder filed an application for

substitution or setting aside the abatement which came

to be opposed. However, the executing Court held that

decree holder had been prevented by sufficient cause

and accordingly set aside the abatement. The

respondents pursued their grievance before the High

Court by filing a revision petition. High Court disagreed

with the view taken by the trial Court and held that

appellant had failed to make out sufficient cause for the

delay in applying for setting aside the abatement and for

substitution and it was filed much later than the period

allowed by law and accordingly set aside the order of the

executing Court and dismissed the application filed to

bring L.Rs. of defendants on record. Being aggrieved by

this order, the decree holder pursued the matter before

the Hon’ble Apex Court and in this background, the

Hon’ble Apex Court has held interference in revisional

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jurisdiction is to be limited to jurisdictional aspect only

and not with regard to finding of fact. It has been held

by the Hon’ble Apex Court as under:

“8. It is however contended for the respondent that a decision on a question of limitation involves the question of jurisdiction and in support of this contention reliance is placed

on the case reported as Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 at p. 142: (AIR 1949 PC 239 at p 242). This case laid down no different principle of law. What it said in that connection was quoted

with approval in Keshardeo Chamaria v. Radha Kissen Chamaria, 1953 SCR 136 at p.152: (AIR 1953 SC 23 at p.28) and those observations are : "There have been a very large number

of decisions of Indian High Courts on Section 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error

in a decision of a subordinate court does not itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub- section (c), nevertheless, if

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the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so

vested, a case for revision arises under sub-section (a) or sub-section (b) and sub-section (c) can be ignored." The further observations in that case on which learned counsel for the

respondents mainly relies are : "The cases of Babu Ram v. Munna Lal ILR 49 All 454: (AIR 1927 all 358) and Hari Bhikaji v. Naro Vishvanath ILR 9 Bom 432 may be mentioned as cases

in which a subordinate court by its own erroneous decision (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a

jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result."

These remarks are not applicable to the facts of the present case. They apply to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to

cases in which there is no such ouster of jurisdiction under the

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provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass a

certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one, the Court decides a question of law pertaining to jurisdiction. By a wrong

decision it clutches at jurisdiction or refuses to exercise jurisdiction. In the other, it decides a question within its jurisdiction. In the present case, the question whether there was a sufficient cause was exclusively within the

jurisdiction of the Court and the Court could decide it rightly or wrongly. 9. Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and

application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the

application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act

applies, the Subordinate Court comes to an erroneous decision, it is open to

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the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the

determination of that matter. 10. Section 5 of the Limitation Act, on the other hand, empowers the Court to admit an application, to which its provisions are made

applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Court therefore had jurisdiction to

determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and, if so satisfied, to admit it.

15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate judge with respect to the appellants having sufficient cause for not making an

application for bringing the respondents on record within time and for not applying for the setting aside of the abatement within time. We allow the appeal with costs throughout, set aside the order of the Court below

and restore that of the Trial Court. It will now proceed according to law

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with the further execution of the decree on the second application presented by the appellant for the purpose.”

11. Section 115 of CPC and the proviso thereunder

would clearly indicate that High Court shall not vary or

reverse any order made or any order deciding an issue

in the course of a suit or other proceeding except where

the order, if it had been made in favour of a party

applying for revision would have finally disposed of the

suit or other proceeding. Undisputedly, proviso came to

be substituted by Act 46/1999 with effect from

01.07.2002.

12. If the impugned order is of interim in nature or

does not finally decide the lis, then, revision would not

be maintainable and it would not be amenable to

revisional jurisdiction. In other words, revisional

jurisdiction cannot be exercised unless the requirement

of the proviso is satisfied.

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13. Keeping these principles in mind, when facts on

hand are examined, it would indicate that defendants in

O.S.No.111/1997 had filed an appeal under Section

96(2) CPC questioning the judgment and decree dated

23.07.1998. Undisputedly, said appeal came to be filed

on 19.04.2010 and as such, there was delay of 11 years

8 months and 27 days in filing the appeal. Hence, an

application under Section 5 of the Limitation Act, 1963

came to be filed seeking condonation of delay, which

has since been allowed by the trial Court as already

noticed herein above.

14. In the event of the said application had been

dismissed, the lis between the parties would have come

to an end. In other words, if the order passed by the

lower Appellate Court allowing the application for

condonation of delay which is under challenge in this

revision petition is accepted or in other words, order of

the lower Appellate Court is set aside, the proceedings

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before the lower appellate Court would stand finally

disposed of, as contemplated under proviso to Section

115 CPC.

15. Hence, this Court is of the considered view that

judgment relied upon by the learned Sr.Counsel

appearing for respondent would be inapplicable to the

facts and circumstances of the case which judgment

was rendered by the Hon’ble Apex Court pre-

amendment to Section 115 CPC. Hence, Point No.1 is

answered in the affirmative.

RE: POINT NO.(2):

16. Suit O.S.No.111/1997 undisputedly came to be

decreed on 23.07.1998. Defendants though appeared

through their Advocates and took sufficient time to file

the written statement did not chose to file the same and

as such, after recording the evidence of plaintiff and

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after hearing the arguments of plaintiff’s counsel, trial

court decreed the suit.

17. Being aggrieved by the exparte judgment and

decree passed by the trial Court, defendants filed a

Misc.Petition No.17/1998 under Order 9 Rule 13 CPC

on 26.08.1998 and sought for setting aside the said

judgment and decree. Said Misc.Petition No.17/1998

came to be dismissed for default by order dated

12.01.2001. Thereafter defendants did not pursue the

matter and they left at it.

18. A person aggrieved by an order passed by the

Court dismissing the petition filed under Order 9 Rule

13 CPC would be entitled to challenge the same under

Section 96(2) CPC read with Order 43 Rule 1(d) CPC.

There cannot be any dispute with regard to this

proposition of law. In the instant case, undisputedly,

after dismissal of Misc.Petition No.17/1998 on

12.01.2001, defendants did not file such an appeal.

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They also did not take any steps for restoration of the

Misc.Petition No.17/1998. In other words, the order of

dismissal of Misc.Petition No.17/1998 dated 12.01.2001

became final.

19. A defendant has two options against an exparte

judgment and decree passed against him, apart from

filing a review petition and filing a suit for setting aside

the exparte decree on the ground of fraud namely, he

can file an appeal challenging the said exparte judgment

and decree under Section 96(1) read with Order 41

Rules 1 and 2 CPC or file an application/petition under

Order 9 Rule 13 CPC. The incidental question which

would arise is whether defendant can avail both the

remedies or not? In fact, similar question came up for

consideration before Hon’ble Apex Court in the case of

BHANUKUMAR JAIN vs ARCHANA KUMAR &

ANOTHER reported in AIR 2005 SC 626 and it came to

be held as under:

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“24. An appeal against an ex-parte

decree in terms of Section 96(2) of the Code could be filed on the following grounds:

(i) The materials on record brought on

record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and

(ii) The suit could not have been posted for ex-parte hearing.

25. In an application under Order 9,

Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had

sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.

26. When an ex-parte decree is

passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options,

one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a

result whereof the ex-parte decree passed by the Trial Court merges with

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the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13

would not be maintainable. However, the Explanation 1 appended to said provision does not suggest that the converse is also true.

27. In an appeal filed in terms of

Section 96 of the Code having regard to Section 105 thereof, it is also

permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein.

28. It is true that although there may not be a statutory bar to avail two

remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a

provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions.”

(emphasis supplied)

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20. In the light of law laid down by the Hon’ble Apex

Court in BHANUKUMAR JAIN referred to supra, when

the facts on hand are examined, it would clearly

indicate that after dismissal of the Misc.Petition

No.17/1998 on 12.01.2001, instead of pursuing the

said course available to the defendants namely, filing an

appeal as contemplated under Section 96(2) read with

Order 43 Rule 1(d) CPC, defendants chose to challenge

the exparte judgment and decree by filing an appeal

under Section 96(1) read with Order 41 Rules 1 and 2

CPC which is a substantive right, as such, it cannot be

held that appeal filed though belatedly was not

maintainable on the ground of same being hit by

principles of resjudicata. Accordingly, point No.(2)

formulated herein above is answered by holding that

appeal in question namely, appeal filed by the

defendants in R.A.No.75/2014 challenging the exparte

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judgment and decree passed in O.S.No.111/1997 was

maintainable before the lower appellate Court.

RE: POINT NO.(3):

21. Defendants had challenged the exparte judgment

and decree passed in O.S.NO.111/1997 dated

23.07.1998 by filing an appeal under Section 96 read

with Order 41 Rules 1 and 2 CPC. Said appeal came to

be presented on 19.04.2010. Said appeal was required

to be filed within 30 days from the date of judgment and

decree as prescribed under Article 116B of the

Limitation Act, 1963. Thus, reckoning the period of

limitation from the date of exparte judgment and decree

passed by the trial Court i.e., from 23.07.1998 to the

date of filing of Appeal R.A.No.75/2014 (then

unnumbered) i.e., 19.04.2010 there was delay of 11

years 8 months and 27 days. Hence, an application

under Section 5 of the Limitation Act, 1963 came to be

filed seeking condonation of delay. In the affidavit filed

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in support of said application, delay was sought to be

explained in paragraphs 2,3 and 4 which reads as

under:

“2. I say that, all the appellants are

residing out side Mangalore in fact two of the appellants are residing out of India. All the appellants had asked their father to defend the case after receiving the summons from the Court.

3. I say, the father of the appellants was a public servant and he was very busy with his works. He had entrusted the matter to respondent No.2 and asked him to fight the case on behalf of the appellants. The father of the appellants was enquiring of the respondent No.2 about the case. But unfortunately the respondent No.2 is not instruct the Advocate

on behalf of the appellants and hence the Advocate has not appeared and contested the matter. Hence the court was pleased to decree the suit without giving opportunity to the

appellants.

(Emphasis supplied)

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4. I say, the appellants have come

to know about the passing of the decree recently in the mean time there was a talk for settlement hence the appeal could not filed in time.”

The above said application filed seeking condonation of

delay came to be resisted by the plaintiff by filing

detailed statement of objections and specifically

contending that defendants had earlier filed a

Misc.Petition 17/1998 which ended in dismissal on

12.01.2001 and defendants were aware of the said

exparte judgment and decree passed by the trial Court

and as such, they contended that cause shown for the

delay in filing the appeal is bereft of facts and untrue.

As such, they sought for dismissal of the application.

22. Perusal of the order passed by the lower appellate

Court would indicate that at paragraph 14 it has been

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held that “substantial rights of the parties cannot be

deprived on the ground of technicalities” and also on the

ground that plaintiff had admitted that he was not

aware about some of the defendants being residents

outside India. On these grounds, as already noticed

lower appellate Court has allowed the application on

payment of cost of Rs.2,000/- by defendants to

plaintiffs by condoning the delay.

23. In the normal course, this Court would have

refused to interfere with the order passed by the lower

appellate Court whereunder an application for

condonation of delay had been allowed on the ground

that technicalities when pitted against substantial

justice, such technicalities will have to yield to

substantial justice. In other words, it can be said that

no litigant would stand to benefit by approaching the

Court belatedly. At the same time, it requires to be

noticed that concepts such as “liberal approach”,

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“justice oriented approach”, “substantial justice” cannot

be employed to jettison substantial law of limitation as

held by the Hon’ble Apex Court in the case of LANKA

VENKATESHWARULU (D) BY L.RS vs STATE OF

ANDHRA PRADESH & OTHERS reported in AIR 2011

SC 1199 particularly when Court comes to a

conclusion that there was no justification for delay.

Thus, primary concern of the Court while examining an

application for condonation of delay is to ascertain or

examine as to whether the cause shown for approaching

the Court belatedly is sufficient enough to accept the

same to condone the delay. It is not the length of delay

which will have to be considered but the cause shown

namely, the existence of sufficient cause for not

approaching the Court within prescribed time. If in a

given case, the cause shown is not sufficient or in other

words, it is not within proximity of truth or contrary to

facts then it would, amount to insufficient cause. In

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those circumstances, Courts would be slow in

condoning delay. Likewise, when delay is inordinate

and unexplained and reasons given in the application or

the affidavit supporting such application as the case

may be, is fraught with vagueness, or incorrect facts or

facts contrary to record is pleaded, even then, Courts

would be slow to condone the delay.

24. Proof of sufficient cause is a condition precedent

for the exercise of discretion and only on establishing

the said cause being sufficient, the Court will examine

as to whether the delay should be condoned. In the

event of applicants failing in this initial test, they cannot

be heard to contend that still delay is to be condoned in

the interest of substantial justice.

25. On the ground of delay, the larger relief to which

the litigant may be entitled to cannot be deprived of.

Delay defeats equity. The Hon’ble Apex Court in the

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case of COLLECTOR, LAND ACQUISITION, ANANTNAG

AND ANR vs. MST. KATJI AND OTHERS reported in

AIR 1987 SC 1353 has laid down the illustrative

contours under which an application for condonation of

delay requires to be examined. It has been held in the

said judgment to the following effect:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour’s delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

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6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the ‘State’ is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its

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application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides".

26. It is no doubt true that a pragmatic approach and

certain amount of latitude requires to be extended while

examining the cause for delay. Sufficient cause does

not mean every day’s delay has to be explained. On an

overall reading of the cause shown would inspire

confidence in the mind of Court to accept it as genuine

and the same to be in the proximity of truth, it would be

sufficient cause to condone the delay as otherwise, not.

At the same time, as already noticed herein above, all

discretionary powers will have to be exercised in

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accordance with law. The Hon’ble Apex Court in the

case of LANKA VENKATESHWARULU (D) BY L.RS vs

STATE OF ANDHRA PRADESH & OTHERS reported in

AIR 2011 SC 1199 has held to the following effect:

“19. We have considered the

submissions made by the learned counsel.

At the outset, it needs to be stated that

generally speaking, the courts in this

country, including this Court, adopt a

liberal approach in considering the

application for condonation of delay on the

ground of sufficient cause under Section 5

of the Limitation Act. This principle is well

settled and has been set out succinctly in

the case of Collector, Land Acquisition,

Anantnag & Ors. Vs. Katiji & Ors (1987) 2

SCC 107.

20. In the case of M. Balakrishnan (AIR

1998 SC 3222) (supra), this Court again

reiterated the principle that rules of

limitation are not meant to destroy the

rights of parties. They are meant to see

that the parties do not resort to dilatory

tactics, but seek their remedy promptly.

21. In the case of Sardar Amarjit Singh

Kalra (AIR 2003 SC 2588) (supra), this

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Court again emphasized that provisions

contained in the Order 22 CPC were

devised to ensure continuation and

culmination in an effective adjudication

and not to retard further progress of the

proceedings. The provisions contained in

the Order 22 are not to be construed as a

rigid matter of principle, but must ever be

viewed as a flexible tool of convenience in

the administration of justice. It was

further observed that laws of procedure

are meant to regulate effectively, assist

and aid the object of doing a substantial

and real justice and not to foreclose even

adjudication on merits of substantial

rights of citizen under personal, property

and other laws. In the case of Mithailal

Dalsangar Singh and Ors. Vs. Annabai

Devram Kini & Ors, (AIR 2003 SC 4244)

(Supra), this Court again reiterated that in

as much as abatement results in denial of

hearing on the merits of the case, the

provision of an abatement has to be

construed strictly. On the other hand, the

prayer of setting aside abatement and the

dismissal consequent upon abatement

had to be considered liberally. It was

further observed as follows:-

"The Courts have to adopt a justice

oriented approach dictated by the

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uppermost consideration that

ordinarily a litigant ought not to be

denied an opportunity of having a lis

determined on merits unless he has,

by gross negligence, deliberate

inaction or something akin to

misconduct, disentitled himself from

seeking the indulgence of the court."

22. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (AIR 2010 SC 3043) (supra), as follows:-

"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."

"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a

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given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

26. We are at a loss xxx unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, xxx in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and

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should not form the basis of exercising discretionary powers.”

27. Keeping above principles in mind, when the facts

on hand are examined, it would indicate that the plea

raised in paragraphs 2, 3 and 4 of affidavit supporting

the application for condonation of delay which has

already been extracted above is not only bereft of

material particulars but it is also as vague, vagueness

could be. In fact, there is suppression of material facts

by the defendants.

28. Defendants -1 to 5 being aggrieved by the exparte

judgment and decree dated 23.07.1998 passed in

O.S.No.111/1997 had filed Misc.Petition No.17/1998

through their General Power of Attorney holder

Mr.U.T.Alva as could be seen from the Misc.Petition

No.17/1998 appended to the present revision petition.

This petition was prosecuted by them before the trial

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Court for a period of nearly three years i.e., till it came

to be dismissed for default on 12.01.2001.

subsequently, appeal R.A.No.75/2014 (earlier it was

unnumbered since there was delay) came to be filed on

19.04.2010. Said appeal came to be presented by the

defendants through their Power of Attorney holder by

name Sri.Kumar Chikkappa Alva who is none other

than son of Sri U.T.Alva who was the General Power of

Attorney Holder of defendants when Misc.Petition

No.17/1998 was filed and who had also represented the

defendants in O.S.No.111/1997. As such, the cause

shown in the affidavit supporting the application for

condonation of delay about appellants not being aware

of the exparte judgment and decree passed in

O.S.No.111/1997 on 23.07.1998 as pleaded by them in

paragraph 4 of the affidavit is held to be a false

statement. In fact, in the Misc.Petition No.17/1998

filed by them it is specifically contended by the

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defendants that they had obtained copy of judgment

and decree on 07.08.1998 from their previous counsel

after which they had approached their advocate for

filing the Misc.Petition. In other words, this plea

putforward by the defendants in the Misc.Petition

No.17/1998 would clearly indicate that defendants were

very much aware of the exparte judgment and decree

passed in O.S.No.111/1997 way back on 07.08.1998

itself and it is because of this reason they had filed

Misc.Petition 17/1998 and did not pursue the same

after it came to be dismissed on 12.01.2001. That apart

no reasons are assigned by defendants for the period of

nine years i.e., from date of dismissal of Misc.Petition

No.17/1998 (12.01.2001) to date of filing of

R.A.No.75/2014 on 19.04.2010. As such, plea now

putforward in paragraph 4 of the affidavit supporting

the application through their Power of Attorney holder

which is to the effect about “appellants having come to

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know about passing of the decree recently” is not only a

false statement and by no stretch of imagination said

cause can be held to be sufficient cause to condone the

delay. Much water has flown down the bridge. Right

accrued to the defendant now cannot be unsettled.

29. Thus, taking into consideration all the attendant

circumstances namely, substantial justice, liberal

approach and justice oriented approach and after

applying the same to the facts on hand, it has to be held

that defendants in the instant case have utterly failed to

prove that they were prevented by any sufficient cause

in filing the appeal belatedly or the cause shown by

them would constitute sufficient cause for being

accepted.

30. In that view of the matter, Point No.(3) has to be

answered in the negative namely, it has to be held that

lower appellate Court was not justified in condoning the

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delay for entertaining the appeal to be examined on

merits.

31. For the reasons aforestated, I proceed to pass the

following order:

(1) Revision petition is hereby allowed.

(2) Order dated 20.10.2011 passed by

Sr.Civil Judge, Mangalore allowing

I.A.No.I filed under Section 5 of the

Limitation Act, 1963 in

R.A.No.75/2014 (then unnumbered

R.A.__/2010) is hereby set aside.

(3) I.A.No.I filed under Section 5 of the

Limitation Act, 1963 is hereby

dismissed and consequently, appeal

R.A.No.75/2014 stands dismissed.

(4) Costs made easy.

Sd/- JUDGE *sp