VEERABHADRAPPA Vs. PARVATHAMMA

JUDGEMENT

(1.) This appeal is filed challenging the order of dismissal dtd. 6/2/2014, passed in Misc.No.6/2013, on the file of the II Additional District, Judge, Mysore, on the ground of delay.

(2.) The factual matrix of the case of the petitioner/appellant is that he had suffered the judgment and decree passed in O.S.No.24/1992. Being aggrieved by the said judgment and decree, R.A.No.4/2000 was filed before the First Appellate Court and the same was dismissed for default on 4/3/2008. Being aggrieved by the order of dismissal, Misc.No.6/2013 was filed for the relief of restoration of R.A.No.4/2000 and there was a delay in filing the said petition. The First Appellate Court having recorded the evidence of the petitioner, dismissed the said petition on the ground that the delay of three years nine months has not been properly explained and no sufficient cause is placed before the Court to condone the delay. Hence, the present miscellaneous first appeal is filed before this Court.

(3.) The main ground urged in the appeal is that the Court below has committed an error in not condoning the delay in filing the petition. It is contended that Veerabhadrappa was suffering from cancer for more than four years and he was looking after the litigation in question and he could not meet the counsel and dismissal of the appeal for default was not known to the appellant. The said Veerabhadrappa died on account of the said disease and therefore immediately after coming to know of the dismissal of the appeal, the appellant challenged the same by filing the miscellaneous application and hence there was a delay and delay is on account of bonafide reasons and the same has not been accepted by the Trial Court. It is contended that on account of delay, merit should not be made a scapegoat. It is contended that the suit filed by the plaintiff for declaration and possession has been decreed and validity of the said decree has been challenged and the decree was stayed in R.A., but R.A. was dismissed for default and not on merits. If R.A. is restored, it will meet the ends of justice. The Court was not justified in relying upon the judgment of this Court while dismissing the petition and the said judgment is wholly inapplicable to the facts and circumstances of the case.