BHIMAGOUDA Vs. APPASAHIB PARAGOUDA PATIL

JUDGEMENT

(1.) this appeal is by the defendant who after entering appearance failed to file a written statement and remained absent there after. In that circumstance, the plaintiff was examined as P.W. 1 in support of his prayer for declaration and possession of the suit schedule immovable properties. After the examination, the case was adjourned for appearance of defendant and his counsel for purpose of cross-examination of plaintiff. Even then the defendant did not appear. In that circumstance, the court proceeded to dispose of the suit on merits on the basis of the evidence recorded, resulting in the decree being granted as prayed for.

(2.) some 11 months beyond the period of limitation, an appeal was preferred from the judgment of the trial court in O.S. No. 8/1987 on the file of the munsiff, gokak, to the learned civil judge, gokak, in r.a. No. 14/1990. That appeal came to be rejected on two grounds: (1) that it was hopelessly belated; and (2) that the appellant had not placed any material before the court which would constitute sufficient cause for explaining the inordinate delay in terms of section 5 of the Limitation Act.

(3.) in so far as the condonation of delay is concerned, it is a discretionary jurisdiction of the court. Unless the discretion is exercised capriciously or without reference to the facts placed before it, then this court as an appellate court or superior corrective court cannot interfere with the discretion exercised. I have earlier narrated the facts leading to the decree. From them, it is obvious that the defendant was advised by the counsel and had chosen to remain absent without filing the written statement after entering appearance. However, it is submitted from the bar that the defendant kept quiet, as he was led to believe that the suit was withdrawn on account of a compromise entered into before the panchayatdars in the village. That fact was not probabilised by examining any witness in support of the prayer in i.a. No. I for condonation of delay. In that circumstance, it cannot be said that the court had not correctly used its discretion in refusing to entertain the appeal after such a long lapse of time. In that view of the matter, the appeal was not maintainable as being barred by time.