- 1 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 4 OF 2025 (INJ) BETWEEN: 1. SMT KANAKAMMA W/O. R KRISHNAPPA, AGED ABOUT 72 YEARS, RESIDING AT CHALAGANAHALLI VILLAGE, ROBERTSONPET HOBLI, BANGARPET TALUK 563 162. 2. SRI. NAGAPPA, S/O. NANJUNDAPPA, AND LATE ASHWATHAMMA, AGED ABOUT 55 YEARS, 3. SRI. GOVINDAPPA, S/O. NANJUNDAPPA AND LATE ASHWATHAMMA, AGED ABOUT 53 YEARS, 4. SRI. BOOMESH, S/O. NANJUNDAPPA AND LATE ASHWATHAMMA, AGED ABOUT 50 YEARS, 5. SRI. MANJUNATH, S/O. NANJUNDAPPA AND LATE ASHWATHAMMA, AGED ABOUT 47 YEARS, 6. SRI. LOKESH, S/O. NANJUNDAPPA AND Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 LATE ASHWATHAMMA, AGED ABOUT 45 YEARS, RESPONDENTS 2 TO 6 ARE RESIDING AT HUNKUNDA VILLAGE, KASABA HOBLI, BANGARPET TALUK - 563 162 …APPELLANTS (BY SRI. SUJAYEENDRA S.,ADVOCATE) AND: SMT. RATHNAMMA W/O. VENKATANAREPPA, AGED ABOUT 82 YEARS, RESIDING AT CHALAGANAHALLI VILLAGE, ROBERTSONPET HOBLI, BANGARPET TALUK - 563 162 …RESPONDENT (BY SMT. ANITHA PATIL S M ADVOCATE FOR SRI. SHIVANANDA R .,ADVOCATE) ------ THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE ORDER DATED 01.10.2024 PASSED ON I.A.NO.1 IN RA.NO.154/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KGF, ITINERARY AT BANGARPET, REJECTING THE I.A.NO.1 AND DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 02.04.2018 PASSED IN OS.NO.24/2013 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, BANGARPET., ETC THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 ORAL JUDGMENT Heard Sri Sujayeendra Sridhar, learned counsel for the appellant and Smt. Anitha Patil, learned counsel for the respondent. 2. Defendants are the appellants in this second appeal. They have challenged the dismissal of the appeal on the ground of limitation wherein they have challenged the validity of the decree passed in O.S.No.24/2013. 3. Facts in the nut shell for the disposal of the present appeal are as under : 3.1. A suit for permanent injunction came to be filed by the plaintiff contending that, suit property was a granted land in favour of the Venkaramaiah @ Venkataramareddy in Sy.No.10 to an extent of 01 acre 27 guntas by the Tahsildar, Bangarpet and he was in possession and enjoyment of the same. 3.2. It is further contended that, he is having three sons by name Muniyappa, Nagappa and Venkatanareppa. Venkataramiah and his last son-Venkatanareppa are no more and property succeeded by Nagappa and Rathnamma and 35 guntas of each was enjoyed by them in the year 1990-2000. - 4 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 3.3. In the year 2007-08, half of the suit property was transferred from Nagappa to plaintiff as per order in RRTCP No.70/2007 dated 07.08.2007 and thereafter the plaintiff was enjoying the suit property. 3.4. It is also contended that defendants who had no right, title or interest over the suit property, started interfering with the suit property and therefore, suit for bare injunction was filed. Suit, on contest, came to be decreed by judgment and decree dated 02.04.2018. 4. Appeal came to be filed by defendants belatedly in the year 2022 numbered as R.A.No.154/2022 along with an application seeking condonation of delay of 4 years, 3 months and 27 days. 5. Plaintiff was notified in the appeal. Plaintiff seriously objected for condonation of delay by filing written objections opposing the delay of 4 years, 3 months and 27 days in preferring the first appeal. - 5 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 6. Learned Judge held an enquiry and thereafter heard the argument on the application seeking condonation of delay and by order dated 01.10.2024, dismissed the application-I.A.1 filed under Section 5 of the Limitation Act along with R.A.No.154/2022 and consequently, dismissed the appeal as well. 7. Being aggrieved by the same, defendants are before this Court in this appeal on the following grounds and substantial questions of law. 1. The first appellate court committed a grave error in rejecting the application for condonation of delay filed under Section 5 of the Limitation Act, leading to the dismissal of the regular appeal solely on the ground of delay. The first appellate court despite the medical reports on record marked as Ex-P2 to Ex- P11 sufficiently indicating that the for the entire duration between 18.02.2018 till 22.08.2022 the appellant No.1/defendant No.1 was unwell, proceeded to adopt a hyper-technical approach and observe that there is no medical prescription and discharge summary to believe the version of the appellants. 2. The first appellate court failed to appreciate the vital aspect that the judgment of the trial court dated 02.04.2018 was passed ex-parte, in view of the fact that the defendants had not even led their evidence before the trial court, and the trial court had failed to consider the defence of the defendants as per their - 6 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 Written Statement, by drawing an adverse inference on account of there being no evidence. In that view of the matter, the ends of justice necessitated that an opportunity be given to the defendants to put forth their case to decide the case on merits. The same would aid in rendering substantial justice, the same is held by this Hon'ble Court in 'M Nagesh Suvarna vs. Narayana' reported in ILR 2016 Kar 4252. 3. The first appellate court erred in not factoring the benefit the appellants would get on account of the exclusion of the period from 15.03.2020 till 28.02.2022 as per the directions of the Hon'ble Supreme Court vide Order dated 10.01.2022 passed in Suo Motu Writ Petition No. 3 of 2020. Thereby the actual period to be considered for condonation of delay was 3 years 4 months 17 days and not 4 years 3 months 27 days. 4. The first appellate court ought to have taken a liberal approach in deciding the application for condonation of delay on technical considerations, particularly when substantial rights of the parties are involved in connection with immovable property. 5. The first appellate court erred in coming to a conclusion that there was no life-threatening disease and hence not taking legal action at relevant point of time is not bona-fide and rather deliberate one. The said conclusion that the delay was deliberate was uncalled for, the first appellate court ought to have exercised its discretionary power and excused the delay in light of the bona-fide and sufficient cause demonstrated by the appellants. - 7 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 6. The trial court had also grossly erred in holding that the plaintiff is in possession of the suit schedule land when there was a specific denial of the identity of the land. Even otherwise, the burden vested on the plaintiff to demonstrate their possession as per the boundary description appended in the suit schedule. There being no document whatsoever to the said effect, the trial court committed a glaring error in holding that the plaintiff had proved her possession over the suit schedule land. The Ex-P1 Grant Certificate admittedly has no boundary description and relying the same to hold that the possession is proved is pertinently erroneous. 7. In addition to the above the first appellate court ought to have appreciated that the lower court had not granted sufficient opportunity to the defendants to lead their evidence, and since the suit relates to rights concerning immovable property an order of remand was just and necessary in the ends of justice for affording an opportunity to the defendants to lead evidence and contest the case on merits. SUBSTANTIAL QUESTIONS OF LAW (i) Whether the first appellate court was justified in dismissing the appeal solely on the ground of delay, by rejecting the application filed under Section 5 of the Limitation Act for condoning the delay of 4 years 3 months 27 days? (ii) Whether the first appellate court was justified in not extending the benefit of exclusion of period from 15.03.2020 till 28.02.2022, in computing the delay in presenting the appeal for the purposes of Limitation - 8 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 Act, as per the directions of the Hon'ble Supreme Court? (iii) Whether the judgment of the courts below can be sustained in law? 8. Learned counsel for the appellants, reiterating the grounds urged in the appeal memo, vehemently contended that the finding recorded by the first appellate Court that the appellants were negligent is far from truth as documents that has been placed along with I.A.1 before the first appellate Court, marked in the evidence, sufficiently establish that the appellants were prevented from approaching the Court on account of ill-health. 9. He also contended that whenever rights of immovable properties are involved in a litigation, Courts are to be extra liberal in condoning the delay and semblance of proof that a party is suffering from ill-health is sufficient enough to condone the delay under Section 5 of the Limitation Act and sought for admitting the appeal. - 9 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 10. Per contra, Smt. Anitha Patil, learned counsel for the respondent opposes the appeal grounds with vehemence. 11. Having heard the arguments of both sides, this court perused the material on record meticulously. On such perusal of the material on record, the learned Judge adverted to each and every aspect of the matter while considering the application filed seeking condonation of huge delay of 4 years, 3 months and 27 days. 12. The first appellate Court in paragraphs no.15 and 16 has held as under : "15. Here the very conduct of the appellant comes within the sphere of legal maxim "Vigilantibus et non dormientibus jura subveniunt" which means Law assist those who are vigilant and not those who sleep over their rights. In this case the conduct of the appellant to remain silent even after having knowledge about passing judgment and decree against them is nothing but their deliberate act of delay the decree in favor of respondent. Though, the learned counsel made endeavor to convenience this court by placing the authorities as stated supra, this court has gone through those authorities in which the - 10 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 ratio laid down states that the reason to exercise discretion can only be exercised when the delay in question is not coupled with gross negligence or deliberate inacation or lack off bonafides in imputable to the party seeking condonation of the delay. After having regard to the ratio in those authorities and facts and circumstance of present case, wherein there is no such bonafides on the part of appellant is encountered in the entire case after going through the materials for consideration. So, with due respect these authorities have no assistance to the case of the appellants. 16. At the same time the ratio laid down in the judgment of Hon'ble Apex Court reported in (2021) 18 SCC 384 between Majji Sannemma Vs Reddy Sridevi, the Hon'ble Apex Court applying the case laws in various judgments of Hon'ble Apex Court has reached demonstrated what is sufficient reasons to condone the delay in preferring the appeal or application in para No.6.2 to 8 which is reproduced as under; 6.2. We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15-3-2017 till the second appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the - 11 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 entire litigation and that she was suffering from health issues and she had fallen sick from 1-1- 2017 to 15-3-2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15- 3-2017. Thus, the period of delay from 15-3- 2017 till the second appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously. 7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under: 7.1. In Ramlal [Ramlal v. Rewa Coalfields Ltd., 1961 SCC OnLine SC 39: (1962) 2 SCR 762: AIR 1962 SC 361], it is observed and held as under: (AIR pp. 363-64, para 7) "7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to - 12 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan Krishna v. Chathappan, 1889 SCC OnLine Mad 11: (SCC OnLine Mad para 2) 2. Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant." " 7.2. In P.K. Ramachandran [P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556], while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3. In Pundlik Jalam Patil [Pundlik Jalam Patil v. Jalgaon Medium Project, (2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907), it is observed as under: (SCC p. 450) "... the laws of limitation - 13 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis Htium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy." 7.4. In Basawaraj [Basawaraj v. LAO, (2013) 14 SCC 81], it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each - 14 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature." 13. A categorical finding has been recorded by the first appellate Court as to the negligence on the part of the appellants in not approaching the Court in time. 14. The learned Judge in the first appellate Court also noted the principles of law enunciated by the Hon'ble Apex Court in the case of Basawaraj v. LAO, reported in (2013) 14 SCC 81 and held that, the expression "sufficient cause" found in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bonafides is attributed to a party who is seeking condonation of delay. 15. In the case on hand, PW.1 reiterating the contents of the affidavit did not specifically depose before the Court as to what prevented her from approaching the Court after recovery and till what date she was suffering ill-health. No material is placed on record in this regard. These aspects has been adverted to - 15 - HC-KAR NC: 2025:KHC:33130 RSA No. 4 of 2025 by the first appellate Court in detail after discussing the material placed on record. 16. Moreover, suit is one for bare injunction. If PW.1 was suffering from Typhoid, said disease could not have lasted for 4 years, 3 months and 27 days. Therefore, reason assigned seeking condonation of delay is rightly rejected by the learned Judge in the first appellate Court which requires no interference in this appeal. 17. Accordingly, following order is passed : ORDER Appeal is meritless and is hereby dismissed. Sd/- (V SRISHANANDA) JUDGE rs List No.: 2 Sl No.: 2