GURUNATH Vs. GANGAPPA

JUDGEMENT

(1.) This captioned civil revision petition is filed by the plaintiff challenging the order dated 05.12.2020 on I.A.No.1 in R.A.No.70/2020 passed by the VII Additional District & Sessions Judge, Belagavi sitting at Chikkodi, which is filed seeking condonation of delay of 422 days in filing the appeal.

(2.) The present petitioner has filed a suit for declaration and injunction in O.S.No.97/2016 on the file of the Senior Civil Judge, Athani. The respondent/defendant did not contest the proceedings by filing written statement. The suit came to be decreed by judgment and decree dated 15.11.2018. The respondent herein being aggrieved by the judgment and decree passed in O.S.No.97/2016 has filed an appeal in R.A.No.70/2020. Since there was a delay in filing the appeal, the respondent herein filed an application in I.A.No.1. The application was strongly resisted by the petitioner herein. The lower appellate Court having examined the rival contentions and having also given its anxious consideration to the averments made in the affidavit filed in support of the application has proceeded to allow the application and thereby condoned the delay and restored the regular appeal. The present petitioner/plaintff who is the benefit of the decree passed by the court at first instance is before this Court.

(3.) Learned counsel for the petitioner would vehemently argue and contend before this Court that the order under challenge suffers from material irregularity and there is grave error committed by the lower appellate Court in allowing the application filed by the respondent seeking condonation of delay of 422 days in filing the appeal. The grievance of the petitioner before this Court is that the respondent herein was not diligent in contesting the suit. He would further submit to this Court that there is inordinate delay in preferring the regular appeal challenging the judgment and decree passed in O.S.No.97/2016. The learned counsel would submit to this Court that no satisfactory reasons are assigned in the affidavit, but the lower appellate Court has in fact found fault with the advocate on record who has defending the respondent. In the absence of cogent reasons assigned by the respondent, he would submit to this Court that the lower appellate Court has taken a liberal view in allowing the application and the same resulted in miscarriage of justice to the petitioner. He would further submit to this Court that, since there is inordinate delay, it was incumbent on the part of the respondent to lead ocular evidence and since this exercise is not done by the respondent, the lower appellate Court ought to have rejected the application and consequently dismissed the appeal. To buttress his arguments he would rely upon the judgment rendered by this Court in the case of D.Abdullah Sab and Others Vs Syed Jabbar , 2014 4 KCCR 3539. Placing reliance upon the aforesaid judgment, he would submit to this Court that, since the application is strongly resisted by the petitioner herein and several defences are taken in objection, the respondent was required to offer a satisfactory explanation by leading ocular evidence in regard to delay caused in filing the appeal. Since this exercise is not done, he would submit to this Court that the order under challenge is liable to be set aside and consequently the appeal is liable to be dismissed.