- 1 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 2183 OF 2024 (PAR/DEC) BETWEEN: SRI. THIMMEGOWDA S/O. LATE SHAMANNA AGED ABOUT 72 YEARS R/AT IN A PORTION OF 212/A, NEAR MUNESHWARA TEMPLE RMV POST, BENGALURU - 560094. PRESENTLY AT NO.113, NEAR BASAVESHWARA TEMPLE NAGASHETTYHALLI, BENGALURU - 560094. …APPELLANT (BY SRI. NATARAJ BABA K., ADVOCATE) AND: 1. SMT. N.S.RATNAMMA W/O. LATE CHANNAKRISHNAIAH AGED ABOUT 58 YEARS, RESIDING AT NO. 212/A NEAR MUNESHWARA TEMPLE R.M.V. POST, BENGALURU - 560094. 2. SMT. LAKSHMAMMA W/O. LATE KRISHNAPPA AGED ABOUT 70 YEARS RESIDING AT NO. 212/A Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 NEAR MUNESHWARA TEMPLE R.M.V. POST, BENGALURU - 560094. 3. SMT. HANUMAKKA W/O. LATE KRISHNAPPA (EX-CHAIRMAN) AGED ABOUT 76 YEARS, RESIDING AT NO. 212/A NEAR MUNESHWARA TEMPLE R.M.V. POST, BENGALURU - 560094. 4. SRI. M.V.SATHYANARAYANA RAO S/O. VENKAPPAIH AGED ABOUT 85 YEARS, R/AT SAPTAGIRU KRUPA, SHESHADRIPURAM, 1ST MAIN, PALACE GUTTAHALLI, BENGALURU - 560020. …RESPONDENTS (BY SRI. R.ABDUL REYAZ KHAN, ADVOCATE FOR C/R1) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.09.2003 PASSED IN OS NO.2578/1994 ON THE FILE OF XXII ADDITIONAL CITY CIVIL JUDGE, BENGALURU., DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND DECLARATION. THIS RFA, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT The present appeal by defendant No.3 assailing the judgment and decree dated 20.09.2003 passed in O.S.No.2578/1994 on the file of the XXII Additional City - 3 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 Civil Judge at Bengaluru (‘the Trial Court’ for short), whereby, the suit of the plaintiffs was decreed. 2. The said appeal is accompanied by I.A.No.1/2024 seeking to condone the inordinate delay of 6945 days in preferring the present appeal. 3. Heard Nataraj Baba .K, learned counsel for the appellant and Sri R. Abdul Reyaz Khan, learned counsel for the caveator/respondent No.1. 4. In support of the application in I.A.No.1/2024, an affidavit is sworn in by one Sri Thimmegowda S/o late Shamanna. The relevant portion of the affidavit is culled out and extracted hereunder: “8. I acknowledge that there has been a delay in filing this appeal due to my illiteracy and lack of legal and factual knowledge. I was unable to file the appeal within the prescribed time. It only came to my attention during the above FDP court proceedings when the court commissioner had been appointed to measure the property. After discussing the matter with my current advocate, I was advised to challenge the preliminary - 4 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 decree if I was aggrieved by it. Additionally, I have been suffering from age-related health issues, which further prevented me from filing the appeal on time. Therefore, I am filing this application for the condonation of delay. If the Hon'ble trial court proceeds further without allowing this application, it may cause great hardship to me, the appellant, and could lead to a multiplicity of proceedings. In light of this, it is appropriate to grant the relief as requested in the attached application. Refusing the interim prayer would result in significant loss and injury that cannot be compensated. We have a strong case and valid grounds for this appeal.” 5. The law of limitation finds its routes in the legal maxim “Interest reipublicae ut sit fanis litum” which means that in the interest of the state as whole there should be a limit to litigation and “vigilantibus non dormeientibus jura subveniunt” which means the law will assist only those who are vigilant to their rights and not those who sleep upon it. The law of limitation specifies the statutory time frame within which a person may initiate a legal proceedings or a legal action can be brought. If the suit is filed after the expiry of the time - 5 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 prescribed, it will be barred by limitation, it means that the suit brought before the Court after the expiry of the time within which a legal proceedings to be initiated will be restricted. 6. Section 3 of the Limitation Act 1963 lays down the general rule that if any suit, appeal and application made after the prescribed period shall be dismissed although limitation has not been setup as a defence, the exceptions are culled out under Section 4 to 24 of the Limitation Act, and this Court is concerned about Section 5 of the Limitation Act, which empowers the Court to admit an appeal even if it is preferred after the prescribed period provided the proposed appellants gives “sufficient cause” for not preferring the appeal within the prescribed period, in other words the Courts have conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellant is able to establish “sufficient cause” for not filing within time. - 6 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 7. The said power to condone the delay and admit the appeal preferred after the expiry of the time is discretionary in nature and may not be exercised even if “sufficient cause” is shown based upon post of other factors such as negligence, failure to exercise due diligence etc., the Apex Court in the case of Collector, Land Acquisition, Anantnag and Other Vs. Katiji and Others1 has held in advocating the liberal approach in condoning the delay for sufficient cause held that ordinarily a litigant does not stand to benefit by lodging an appeal late: it is not necessary to explain every days delay in filing the appeal: and since some time refusal to condone the delay may result in throwing out the meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon the technical consideration and if the delay is not deliberate, it not be condoned. Notwithstanding the above, howsoever liberal approach is adopted in condoning 1 (1987) 2 SCC 107 - 7 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 the delay, existence of “sufficient cause” for not filing the appeal in time is a condition precedent for exercising the discretionary power to condone the delay. 8. The phrases “liberal approach, justice oriented approach” and cause for the advancement of “substantial justice” cannot be employed to defeat the law of limitation so as to allow the stale matters or as a matter of fact dead matters to be revived and reopened by taking aid of Section 5 of the Limitation Act. In the instant case, the delay is of not few days but inordinate delay of 6945 days, Section 5 of the Limitation Act, prescribes certain period for filing an appeal, substantial right is already been created in favour of the decree holder herein and this right ought not to be lightly disturbed. The Apex Court in the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields ltd.,2 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the 2 AIR 1962 SC 361 - 8 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 condonation of delay as excusing the delay is the discretionary jurisdiction vested with the Court. The Court, despite establishment of “sufficient cause” for various reasons may refuse to condone the delay depending upon the bonafide of the party. 9. The Apex Court in the case of Lanka Venkateswarlu (Dead) By LRs Vs. State of Andhra Pradesh and Others3 has observed that despite unsatisfactory explanation for the delay of 3703 days, the High Court had allowed application for condonation of delay, the Apex Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. The High Court should have exercised the discretion in a systematic and in informed manner. The liberal approach in considering the sufficiency of the cause for delay should not allowed to over ride the substantial law of limitation. The Court further observed that the concepts such as “liberal approach” “justice oriented 3 (2011) 4 SCC 363 - 9 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 approach” and “substantial justice” cannot be employed to jettison the substantial law of limitation. The Apex Court in the later judgment of Basawaraj and Anr. vs. Special Land Acquisition Officer4 (Basawaraj) has observed that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. “Sufficient cause”, as occurring in Section 5 of the Limitation Act, cannot be liberally interpreted if negligence, inaction or lack of bonafide is writ large. It has also observed even though limitation may harshly affect the rights of the parties but it has to be applied with all its rigour as prescribed under the statute and the Courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds and at paragraph No.12 and 15 has held as under: “12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute 4 (2013) 14 SCC 81 - 10 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. 15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.” - 11 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 10. The Apex Court in another judgment in the case of Ajay Dabra Vs. Pyare Ram and Ors5 has observed that an appeal has to be filed within a stipulated period prescribed under the law belated appeals can only be condoned, when “sufficient reasons” are shown before the Court for the delay and the Courts should not be pedantic in their approach while condoning the delay and the explanation of each day’s delay should not be taken literally but the fact remains there must be a reasonable explanation for the delay and at paragraph No.5 has held as under: “5. What we have here is a pure civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. In the present case, this delay has not been explained to the satisfaction of the court. The only reason assigned by the appellant for the delay of 254 days 5 2023 live law (SC) 69 - 12 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 in filing the First Appeal was that he was not having sufficient funds to pay the court fee! This was not found to be a sufficient reason for the condonation of delay as the appellant was an affluent businessman and a hotelier. In any case, even it is presumed for the sake of argument that the appellant was short of funds, at the relevant point of time and was not able to pay court fee, nothing barred him from filing the appeal as there is provision under the law for filing a defective appeal, i.e., an appeal which is deficient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Section 149 of Civil Procedure Code, 1908 which reads as under :- "Section 149: Power to make up deficiency of Court Fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee, and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance." It also needs to be emphasized that this Court as well as various High Courts, have held that Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the incorporation of Section 149 in CPC would explain this aspect.” 11. The reasons mentioned in the affidavit does not appraise the conscious of this Court more particularly for - 13 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 unexplained delay from 20.09.2003 to 2024 since the suit filed by the plaintiffs was allowed on 20.09.2003 itself, which fact was very much within the knowledge of the appellant as is evident from the affidavit filed along with the application. The appellant has stated that due to illiteracy and lack of legal and factual knowledge, he could not prefer the appeal within time. When an appeal is preferred, the appellant has to explain each delay in preferring the appeal. The affidavit does not disclose or give any explanation for an inordinate delay of 6945 days, the delay is not of a few days but a delay of more than 19 years. The reasons assigned are not acceptable and the appeal is to be dismissed on the ground of delay and latches. It is well settled position of law that the existence of "sufficient cause" to the satisfaction of the Court is the condition set for the Court to exercise its discretion in the matter of condoning delay. In the circumstances, the cause stated in the affidavit cannot said to be bonafide or sufficient cause. Despite the delay, this Court has - 14 - HC-KAR NC: 2025:KHC:29175 RFA No. 2183 of 2024 examined the appeal on merits to ensure justice is not denied on ground of limitation. There is no merit in the appeal as well. 12. Accordingly, the appeal is dismissed on the ground of delay for having not made out sufficient cause to condone inordinate delay of 6945 days as well as on merits. Accordingly, I.A.No.1/2024 is dismissed. Sd/- _______________________ JUSTICE K.S. HEMALEKHA MBM List No.: 2 Sl No.: 34