- 1 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 870 OF 2020 (INJ) BETWEEN: 1. HANUMEGOWDA S/O PUTTE GOWDA AGED ABOUT 76 YEARS R/A ALADAHALLI VILALGE KASABA HOBLI MALAVALLI TALUK MANDYA DISTRICT …APPELLANT (BY SRI. CHANDRASHEKAR H B.,ADVOCATE) AND: 1. SMT JAYAMMA W/O DODDAMADEGOWDA AGED ABOUT 43 YEARS R/A.ATTUVANAHALLI KASABA HOBLI MALAVALLI TALUK MANDYA DISTRICT …RESPONDENT (BY SRI. T SESHAGIRI RAO.,ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE ORDER DATED 04.11.2019 PASSED IN URRA Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 No.06/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALAVALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.04.2012 PASSED IN OS.No.35/2006 ON THE FILE OF THE CIVIL JUDGE AND JMFC, MALAVALLI. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the order on IA.No.1 dated 04.11.2019 passed in U.R.R.A.No.6/2013 on the file of the Senior Civil Judge, Malavalli. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.2 and the respondent was the plaintiff. 3. The brief facts leading rise to the filing of this appeal are as follows: - 3 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 The plaintiff filed a suit against the defendants for a permanent injunction. The said suit was decreed by the trial Court vide judgment dated 03.04.2012. Defendant No.2, aggrieved by the judgment and decree passed in O.S.No.35/2006 preferred an appeal on the file of the Senior Civil Judge, Malavalli along with an application to condone the delay of 8 months 26 days in preferring an appeal. The said application was opposed by the respondent/plaintiff by filing objections. 4. Defendant No.2 examined himself as PW1, on the other hand, the plaintiff was examined as RW1. The first appellate Court in U.R.R.A.No.6/2013 rejected IA.No.1 and consequently, dismissed the appeal. Defendant No.2, aggrieved by the order on IA.No.1, filed this Regular Second Appeal. 5. Heard the arguments of the learned counsel for defendant No.2 and the plaintiff. - 4 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 6. Learned counsel for defendant No.2 submits that defendant No.2 could not file the appeal within time on the ground that he was suffering from an ailment and he was advised to take bed rest. Hence, he could not file the appeal well within time. He submits that defendant No.2 has shown a sufficient cause for not preferring the appeal within time. Hence, he submits that the first appellate Court ought to have allowed the application IA.No.1, on the contrary it rejected IA.No.1, hence, he prays to allow the appeal. 7. Per contra, learned counsel for the plaintiff submits that there is an inordinate delay in filing the appeal. He submits that defendant No.2 has not shown a sufficient cause for condoning delay of 8 months 26 days in filing the appeal. He submits that the first appellate Court was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the appeal. - 5 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 8. This Court, vide order dated 16.07.2025 admitted the appeal to consider the following substantial question of law. ""Whether the first appellate Court was justified in rejecting the application under Section 5 of the Limitation Act, despite appellant showing the sufficient cause for not preferring the appeal well within time?" 9. The plaintiff filed a suit for a perpetual injunction. The parties have led evidence. The trial Court decreed the suit of the plaintiff. Defendant No.2 aggrieved by the judgment and decree passed in the suit, preferred an appeal along with an application for condonation of delay of 8 months 26 days in filing the appeal. It is stated that defendant No.2 was suffering from an ailment and he was taking treatment and he was unable to walk and the doctor had advised him to take bed rest and for the said reasons, defendant No.2 could not prefer the appeal well within time. Defendant No.2, examined himself as PW1 before the first appellate Court and reiterated the affidavit - 6 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 averments in the examination-in-chief, and the plaintiff objected the said application and the plaintiff was also examined himself as RW1. Defendant No.2 was suffering from ailment. However, suit involved the right of immovable properties. 10. The Hon'ble Apex Court in case of the Collector of Land acquisition V/s Master katiji and others reported in (1987) 2 SCC 107, held as follows; "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 11. While, considering the application for condoning the delay, the Court must be liberal, and the liberal approach is to be adopted. The first appellate Court without considering the preposition laid down by the Hon'ble Apex Court in case of the Collector of Land acquisition V/s Master katiji and others reported in - 7 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 (1987) 2 SCC 107, has rejected the application for condonation of delay i.e.,IA.No.1. The order on IA.No.1 passed by the first appellate Court is contrary to the preposition laid down by the Hon'ble Apex Court in the case of Master Katiji (referred supra). In view of the above discussions, I answer substantial question of law in the affirmative. 12. Accordingly, I proceed to pass the following order: ORDER 1. The appeal is allowed. 2. The order on I.A.No.1 dated 04.11.2019 passed in U.R.R.A No.6/2013 is set aside. Accordingly, I.A.No.1 is allowed. Delay of 8 months 26 days is condoned. The appeal is restored to its original file. 3. The appellate Court is directed to dispose of the appeal in accordance with law. - 8 - HC-KAR NC: 2025:KHC:27545 RSA No. 870 of 2020 4. The parties are directed to appear before the first Appellate Court on 15.09.2025, without awaiting any further notice. 5. The office is directed to transmit the records to the first Appellate Court. 6. In view of the disposal of the appeal, I.A.No.2/2020 does not survive for consideration and accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RCK, SKS List No.: 3 Sl No.: 1