Shamala Naidu and Others vs Sunanda Bai

K.N. Phaneendra, J.—Heard the learned counsel for the appellants regarding I.A. No. 1/2014 filed under Section 5 of the Indian Limitation Act. Perused the records.

A lady by name Sunanda Bai filed a suit in O.S. No. 149/1988 against Smt. Shamala Naidu and T.D. Nayagam @ Naidu. The said suit was decreed by a judgment and decree dated 22.11.1997 granting relief that plaintiff is the owner in possession of the suit schedule property and restraining the defendants and their men, agents etc. from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property. Being aggrieved by the said judgment and decree, defendant Nos. 1 and 2 have preferred appeal before the Additional District Judge and Presiding Officer (Fast Track Court-IV), Raichur, in R.A. No. 80/2004. By that time, it appears, second defendant died and his legal representatives were brought on record as appellant Nos. 2(A) to 2(D). The appeal was contested by the plaintiff. The first appellate Court on considering the judgment and decree passed by the Trial Court in detail and re-appreciating the materials on record, dismissed the appeal vide judgment dated 30.10.2004 confirming the judgment and decree passed by the Trial Court in O.S. No. 149/1988. Though the judgment and decree was passed by the first appellate Court on 30.10.2004, the present regular second appeal was filed on 02.01.2014 after lapse of 3258 days with an application under Section 5 of the Limitation Act. It is the fundamental basic principle of civil jurisprudence that parties have to show sufficient cause reasonably explaining the delay in preferring the appeal. The explanation given by the party who prefers the appeal in a delayed manner has to satisfy the requirement of Section 5 of the Limitation Act. Further, if the delay is reasonable and the cause shown was sufficient and acceptable by the Courts, then the Court can exercise its discretion and condone such delay. If the delay is unreasonable, though some cause is shown, the Court has to very meticulously look into the cause shown and satisfy itself whether those causes are in the ordinary course are sufficient to condone the delay. It is for the simple reason that the delay caused in preferring the appeal and by virtue of the decree granted by the Trial Court and the first appellate Court some right is vested in favour of the opposite party and unnecessarily party should not be dragged on to the Court for the misconduct of the party who prefers the appeal with an unreasonable delay. With this background, let me see the affidavit filed in support of the application, whether the reasons given by the appellants in preferring the appeal are satisfactory.

It is stated in the affidavit that the first appellate Court has passed the judgment and decree on 30.10.2004. After passing of the said judgment, they met his advocate who advised him to file original suit since they were not aware about the legal proceedings. They had filed suit in O.S. No. 36/2009 and the said suit came to be dismissed on the ground that the suit was not maintainable. Against the said dismissal order, they preferred regular appeal before the Senior Civil Judge at Lingasugur sitting at Sindhanoor in R.A. No. 1/2012. His advocate advised that the original decree passed in O.S. No. 149/1988 has to be challenged. Therefore, they preferred this appeal before this Court, as per the advice of his advocate. It is further stated that they took recourse to the dismissal of the suit stating that the same is not maintainable by way of revision before this Court and this Court while dismissing the same, gave liberty to the appellants to file regular second appeal. Therefore, they preferred this appeal. The above said explanation, though appears to be attractive but they are not supported by any materials on record. The advocate who advised the defendants to file a separate suit or appeal against the dismissal of the suit has not filed any affidavit before this Court nor appellants have stated that how could they able to file regular appeal against the judgment of O.S. No. 149/1988 when they had no legal knowledge. They cannot say that they do not know the legal proceedings or unaware of the legal proceedings because after decreeing the suit against them, they very promptly preferred regular appeal before the first appellate Court that shows that they were properly advised to prefer appeal in R.A. No. 80/2004. The ignorance of law will not always come to the rescue of the persons. I can understand if the appellants are village people who have not assisted by the advocate either before the Trial Court or first appellate Court and therefore, they were not aware of the legal proceedings as such they could not prefer any regular second appeal before this Court. No document has been produced before this Court as to know what relief they have sought in O.S. No. 36/2009 in their subsequent suit and on what grounds the suit was dismissed and why they have filed regular appeal against the said order in R.A. No. 1/2012 and what relief sought in regular appeal. The legal proceedings which are invoked by the appellants herein clearly disclose that they are in the habit of going to the Court either as plaintiffs or as defendants in order to harass the other side. For having suffered a decree after contesting the suit from 1988 to 1997 for a period of nine years before the Trial Court and suffered appellate decree after due contest in the appeal from 22.11.1997 to 30.10.2004, and thereafter, filing a suit in O.S. No. 36/2009 and appeal in R.A. No. 1/2012 and thereafter, preferring revision petition before this Court, all these materials clearly go to show that they are in the habit of approaching the courts in order to drag the opposite party making her to run from pillar to post as far as possible. The said conduct of the parties should not be encouraged by the Courts and such conduct should be met with an iron hand by the Courts.

Looking to the above said fact and circumstances, no one can imagine or come to conclusion that because of the unawareness of the legal proceedings, the appellants could not file this regular second appeal in time before this Court. Therefore, in my opinion, reasons shown are not sufficient moreover, the delay is not reasonable. There is delay of 3258 days which can be safely concluded that it is an unreasonable delay which is not properly explained. Hence, I.A. No. 1/2014 deserves to be dismissed with costs. Consequently, the appeal also liable to be dismissed.

Hence, I pass the following:

ORDER

I.A. No. 1/2014 filed under Section 5 of the Limitation Act is dismissed. Consequently, the appeal is dismissed on costs of Rs. 500/- to be payable by the appellants to the District Legal Services Authority, Kalaburagi. Send a copy of this order to the District Legal Services Authority for information and to recover the amount if not paid.