Shankar Dhodda Choudappa Bekawadkar vs Arjun Dhodda Choudappa Bekawadkar

A.V. Chandrashekara, J.—Heard the learned counsel appearing for the parties.

Appellant herein is the'' defendant of an original suit bearing O.S. No. 468/2007, which was pending on the file of the Principal Civil Judge (Jr. Dn.), Belgaum. Respondents herein were the plaintiffs in the said suit. The said suit came to be filed for the relief of permanent injunction against the defendant by the plaintiffs in O.S. No. 468/2007 in respect of an immovable property bearing CTS No. 1035(P) measuring 1586/9 Sq. yards situated in Belgaum City. Suit summons had been issued by the trial Court to the defendant. But it was not served on the ground that he was not in station at that point of time. Then summon was sent through RPAD and it was returned with an endorsement "not known". Ultimately, summons was taken out in ''Kannadamma'' daily newspaper published from Belgaum, through substitute service and the service of summons taken out in the said newspaper was held sufficient. Accordingly, defendant was placed ex-parte. Ultimately, suit came to be decreed restraining the defendant from alienating the said suit schedule property.

Against the said judgment and decree, defendant filed an appeal u/s 96 of CPC in R.A. No. 246/2008 and there was a delay of 98 days in filing the appeal. An application had been filed u/s 5 of the Limitation Act vide I.A. No. 1 before the Appellate Court requesting the Court to condone the delay. Since, it was objected to, appellant led his evidence in regard to the delay. His daughter gave evidence before the Court and that has not been accepted and the delay is not condoned. Consequently, appeal is dismissed as time barred vide judgment dated 19.10.2010. It is this dismissal of the appeal on the ground of limitation, which is called in question on various grounds as set out in the appeal memo.

This appeal has been admitted to consider the following substantial question of law framed on 05.06.2014.

Whether the first appellate Court is justified in reversing a well considered judgment of the trial Court by ignoring the material evidence placed on record and thus the judgment of the first appellate Court has become perverse and illegal, more particularly, when there is no evidence regarding the existence of nucleus enabling the youngest member of the joint family to purchase the property?

The learned Judge of the first appellate Court has come to the conclusion that each day delay has to be explained. According to the learned first appellate Judge, delay is inordinate and each day delay has not been explained. In fact Hon''ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , has categorically held that, Courts should be liberal in the matter of condonation of delay and there should not be any pedantic approach. In fact, the reasons assigned by the first appellate Court are contrary to the principles enunciated by the Hon''ble Supreme Court in Khatiji''s case. The delay of 98 days, according to this Court, is a marginal delay, which could have been condoned by imposing some reasonable costs. Having not done so, the first appellate Court has taken an extreme view to dismiss the very appeal, more particularly, a suit relating to an immovable property. In this view of the matter, the approach adopted by the first appellate Court is incorrect and improper. Hence, the delay needs to be condoned and the matter needs to be remitted to the first appellate Court for consideration of the appeal on merits. Hence, substantial question of law is answered in the negative.

ORDER

Appeal filed u/s 100 of CPC is allowed and the matter is remanded to the first appellate Court to dispose of the matter on merits on or before 31.12.2014 without fail.

Parties shall appear before the first appellate Court on 31.07.2014 and cooperate with the Judge in disposal of the matter at the earliest.

There is no order as to costs.