BHASKAR Vs. MARIGOWDA AND OTHERS

JUDGEMENT

(1.) THIS is a defendant's appeal questioning the correctness and legality of Judgment and decree passed in U.R.R.A. No. 10/2008 dated 24.10.2009 by Civil Judge (Sr. Dn), Malavalli whereunder application filed under section 5 of the Limitation Act seeking for condonation of delay in filing appeal came to be dismissed and consequently appeal came to be dismissed affirming the Judgment and decree passed in O.S. 126/95 dated 12 04.2005 decreeing the suit for partition and separate possession of suit schedule properties as stated in the Judgment and decree. Heard Smt. Archana Murthy, learned counsel appearing for appellant and Sri. K.M. Sanath Kumar, learned counsel appearing for R -1. Though respondents 5 and 6 are served and represented, none appears. Respondents 2 to 4 are served and unrepresented.

(2.) IT is the contention of Smt. Archana Murthy, learned counsel appearing for appellant that Judgment and decree passed by trial court is without appreciation of fact that plaintiff had failed to prove that suit properties are joint family properties and as such it ought not to have decreed the suit. It is also contended that father of appellant Sri. Javarayi Gowda was working as a teacher and out of his own income he purchased item No. 6 and 7 and as such trial court ought not to have decreed the suit. She further contends that being aggrieved by this exparte Judgment and decree an appeal was filed and lower appellate court without going into the merits of the case dismissed the application filed seeking for condonation of delay and as such she prays for setting aside the Judgment and decree passed by trial court or in the alternative she prays for setting aside order passed by lower appellate court dismissing the application for condonation of delay and for remanding the matter to lower appellate court to dispose of the appeal on merits.

(3.) HAVING heard the learned counsel for appellant and respondent No. 1 it is noticed from the order dated 24.10.2009 passed by lower appellate court that the present appellant herein filed an appeal questioning the judgment and decree passed by Trial court in O.S. 126/95 dated 12.04.2005. Undisputedly there was a delay of two years four months in filing the appeal and seeking condonation of said delay, application under section 5 of the Limitation Act was filed. Said application was resisted by respondent -plaintiff. Appellant got himself examined as PW -1. Undisputedly as per the admission elicited in the cross examination appellant is residing along with his mother and there is no disharmony between them and his mother who was first defendant in the court below was duly represented by a learned counsel and said counsel who had appeared on behalf of the mother of appellant was also representing the appellant. As such lower appellate court has rightly held that appellant cannot feign about decree having been passed behind his back. Taking note of this fact lower appellate court has held that the cause explained for condoning the delay is false. It is no doubt true that while considering the application for condonation of delay the courts should adopt a liberal approach and keeping in mind the principles enunciated by Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 when the facts on hand are examined I am of the considered view that appellant herein has utterly failed to demonstrate that the cause shown for delay being condoned in filing the appeal is neither a sufficient cause nor a cause to be construed as a bonafide cause. No doubt it is not the length of time which requires to be considered for condoning the delay but it is the cause which is shown has to be considered. As already noticed when the cause shown by the appellant not being sufficient cause and plea put forward to substantiate the delay being not bonafide and lower appellate court having held said cause to be false and there being no other material available on record to arrive at a different conclusion I am of the considered view that lower appellate court was fully justified in rejecting the application for condonation of delay and consequently the appeal. In that view of the matter, I do not find that there is any substantial question of law that requires to be framed in this appeal for being adjudicated and answered. Hence, appeal stands dismissed. Parties to bear their costs. Misc. Civil No. 5758/2010 for stay does not survive for consideration and it stands dismissed.