- 1 - HC-KAR NC: 2025:KHC:23071 RSA No. 2073 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.2073 OF 2023 (SP) BETWEEN: 1. SRI. N. RAVI, AGED ABOUT 40 YEARS, S/O NINGAPPA, R/AT NEAR PARVATHAMMA TEMPLE, HARIGE, B.H.ROAD, SHIVAMOGGA-577201. …APPELLANT (BY SMT. SHARADI S. SHETTY, ADVOCATE) AND: 1. SRI. S.VENUGOPALA, AGED ABOUT 56 YEARS, S/O LATE VENKATRAM, R/AT SRI MANJUNATESHWARA NILAYA, 3RD CROSS, A.N.K. ROAD, VENKATESHWARANAGARA, SHIVAMOGGA-577201. …RESPONDENT (NOTICE TO RESPONDENT IS HELD SUFFICIENT, VIDE ORDER DATED 06.06.2025) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE ORDER DATED 06.03.2023 PASSED ON I.A.NO.1 IN R.A.NO.21/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, APPEAL IS DISPOSED OF AND FILED AGAINST THE JUDGMENT AND DECREE DATED 27.11.2019 PASSED IN O.S.NO.168/2015 ON THE FILE OF THE I ADDITIONAL Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23071 RSA No. 2073 of 2023 SENIOR CIVIL JUDGE AND CJM, SHIVAMOOGA, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellant. The respondent though served with notice through paper publication, did not choose to appear before the Court. 2. This Court had earlier heard the matter and directed the learned counsel for the appellant to place on record the medical records, which were placed before the First Appellate Court with regard to the delay is concerned. 3. Now the learned counsel for the appellant places on record the discharge summary of the wife of the appellant dated 10.06.2019, wherein the date of admission is mentioned as 20.05.2019 and she was an inpatient for a period of 20 days. The learned counsel has also produced the certificate that the wife of the appellant had underwent caesarian section and delivered premature baby admitted in - 3 - HC-KAR NC: 2025:KHC:23071 RSA No. 2073 of 2023 NICU and estimated cost would be Rs.3,15,000/- in terms of Ex.P5. The learned counsel has also produced the Echocardiography report dated 04.10.2019 and also the documents dated 06.01.2020, 30.03.2020 and 02.03.2020. The documents at Exs.P.1 to 19 are marked for having taken continuous treatment. 4. The learned counsel for the appellant would vehemently contend that inspite of these documents were produced before the First Appellate Court, the First Appellate Court did not consider the documents in a proper perspective. The First Appellate Court committed an error in dismissing the appeal on the ground of delay. The learned counsel would contend that though there was a delay of 578 days, the same was occurred during the Covid period. The judgment of the Trial Court was passed in November 2019 and in the month of March 2020, due to Covid-2019, entire country was affected. However, the appeal was filed in the year 2021, that too during the SOP and the same has not been considered by First Appellate Court. The learned counsel would contend that the - 4 - HC-KAR NC: 2025:KHC:23071 RSA No. 2073 of 2023 reasoning given by the First Appellate Court while dismissing the appeal is that sufficient cause is not shown to condone the delay. The learned counsel contend that the documents which were placed before the First Appellate Court were not considered. The First Appellate Court observed that the Court has to have a liberal approach while considering the application for condonation of delay. However, the First Appellate Court comes to the conclusion that the appellant at the first instance was not vigilant in defending the case before the Trial Court and had also not filed the written statement and only after the exparte judgment was passed in O.S.No.168/2015 on 15.09.2016, the appellant had assailed the said judgment before the III Additional District Judge, Shivamogga in R.A.No.10/2017. The copy of the judgment passed in R.A.No.10/2017 is marked as Ex.R.3 by the respondent herein. There was a delay of 143 days and the said delay was condoned by the Appellate Court and the judgment came to be passed in the said appeal on 21.06.2018 by which the matter was remanded back for denova trial after granting opportunity to the defendant. Having considered the factual aspects, - 5 - HC-KAR NC: 2025:KHC:23071 RSA No. 2073 of 2023 the appeal is dismissed only on the ground of delay and there is no need to admit the appeal and frame substantive question of law. 5. No doubt, the First Appellate Court has given the reasons for the condonation of delay is concerned, that there must be sufficient cause. But the First Appellate Court fails to take note of the fact that the judgment was passed in November 2019 and also fails to take note of Covid-19 effect within three months of the passing of the said judgment and the Courts were also closed for a period of one month and SOP was issued. When such being the case, after deducting Covid period SOP, the delay would be 168 days, as contended by the learned counsel for the appellant. The First Appellate Court ought to have taken note of the fact that during the pending SOP in the year 2021, the appeal was filed. The First Appellate Court cannot consider the matter on mathematical niceties while considering the delay application and when the documents at Exs.P.1 to 19 are marked before the First Appellate Court seeking for condonation of delay, ought to have - 6 - HC-KAR NC: 2025:KHC:23071 RSA No. 2073 of 2023 taken note of the same, which clearly discloses that from the month of May 2019 to 2022 for one or the other reason, the wife of the appellant was in the hospital. Hence, the appellant has made out a ground to set aside the order of the First Appellate Court. 6. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed. (ii) The judgment and decree of the First Appellate Court dismissing the appeal on the ground of delay, is set aside. (iii) The matter is remanded back to the First Appellate Court to consider the same on merits. (iv) The appellant is directed to appear before the Trial Court on 30.07.2025. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 61