SHARANA GOWDA Vs. NARAYANA

JUDGEMENT

(1.) this interim application for condonation of delay will virtually decide the fate of this appeal. The applicant was the defendant before the trial court in a civil suit where in a dispute arose with regard to the possession of a certain plot of land. The plaintiff had contended that he has acquired a title to the site by virtue of the law of adverse possession and he prayed for a consequential relief against the defendant restraining him from interfering with the plaintiffs possession. The suit was contested and the learned trial judge decreed the suit in favour of the plaintiff. It is relevant for me to record that this litigation was preceded by some other legal proceedings which went up to the Supreme Court where the question with regard to the alleged allocation of the plot in question to the defendant was in issue. The plaintiff had contended inter alia that he was eligible for reconveyance of that plot. That aspect of the matter is really subsidiary to the present question which centers around the solitary point as to whether the present interim application which is for condonation of delay of 872 days in presenting this appeal should be granted or not. The principal ground on which the applicant has prayed for condonation of delay is that he is an elderly person aged about 70 years and that he is a permanent resident of gulbarga town. He has annexed certain medical certificates and other documents on the basis of which it is contended that he is a heart patient and effectively the ground made out is that because of the illness of the applicant that he was unable to come to Bangalore and instruct his learned Advocate to prefer an appeal during this long period of almost 3 years. A strong plea has been advanced by the learned Advocate which basically is to the effect that if applicant has demonstrated that he was only a person of advanced years but also ailing, that it is a fit case in which judicial discretion must be exercised in his favour and the delay should be condoned. I need to record in passing, that the certificates produced fall under three heads, the first two being from certain cardiologists and i had requested the appellant's learned Advocate to ascertain the nature of the so called degrees on these letter heads, most of which are hitherto known. Some explanation has been put forward that these are honorary qualifications which are issued by certain institutions in the united states of america. The third set of documents is in relation to the certificates issued by the hospital which only show that the appellant had obtained certain treatment as an out patient. .the totality of evidence under this head is rather patchy but i do not propose to discard it because the generality of these documents would cumulatively indicate that the appellant was suffering from some sort of heart ailment. Having regard to his age, this was quite possible. The respondent has seriously contested the matter and has contended that this material should be rejected insofar as it does not inspire complete confidence. As far as this aspect of the matter is concerned, to my mind, even though some degree of reliance can be placed on the documents produced, it would at the highest indicate that the appellant was to some extent indisposed during this long period of time. In order to substantiate his plea that he was unable to instruct his learned Advocate and to make arrangements for the filing of the appeal, it would be necessary for the appellant to demonstrate much more than this. It is an essential requirement of law, having regard to the long delay, that he would have to satisfy this court that during this entire period of time his condition was so serious that he was virtually unable to make necessary arrangements. This would include the fact that the appellant could not get the assistance of family members of third parties, that he was unable to make telephone calls or write letters and generally, that he was so gravely handicapped all through this period of time that it was impossible for him to attend to the filing of the appeal. The totality of the material produced before the court falls gravely short of this requirement.

(2.) appellant's learned Advocate has placed strong reliance on the well known decision of the Supreme Court in the case of collector, land acquisition, anantnag and another v mst. Katiji and others wherein, the Supreme Court has laid down six guiding principles which are reproduced below:

(3.) the learned Advocate basically draws my attention to the fact that supreme court had crystallised the position by pointing out that the court is required to adopt a justice-oriented approach while dealing with applications for condonation of delay which means that the approach should not be mechanical nor should the same involve a procedure resulting in injustice to either of the parties. The learned Advocate therefore submits, that since this is a valuable plot and the appellant had seriously contested the proceedings earlier and furthermore, since he has been able to show valid ground for his inability to prosecute the matter during the long lapse of time, that this court should not deprive him of the opportunity of contesting the matter on merits.