LAWS(KAR)-1996-6-61

MANNE MANGAMMA Vs. SIDDANAGOUDA

Decided On June 21, 1996
MANNE MANGAMMA Appellant
V/S
SIDDANAGOUDA Respondents

JUDGEMENT

(1.) THIS is an application under Section 5 of the Limitation Act, for condonation of delay in filing the appeal as an indigent person within the prescribed time.

(2.) THE respondent-plaintiff filed Original Suit No. 72 of 1978 for a decree for specific performance. The Trial Court by its judgment and decree dated 25-6-1984 decreed the plaintiffs suit with a direction to the defendant-applicant to refund the earnest money of Rs. 20,000/ -. The suit was decreed only to that extent. The defendant-applicant did not either prefer the appeal nor approached this Court with application under Order 44 during the period of limitation. The defendant filed an application under Order 44, Rule 1 of C. P. C. on 11-10-1995. The defendant-petitioner also moved an application for condonation of delay in filing the appeal along with application under Order 44, Rule 1 and has prayed for condonation of delay in moving the appeal along with Order 44, C. P. C. application. The appeal as well as order 44 application firstly have been filed beyond limitation. It has really been filed more than 10 years from the date of decision of the Trial Court. In the application for condonation of delay it has been stated that when the recording of evidence had completed and the case was posted for arguments, it was told to him by his Counsel that it is not necessary for the defendant-applicant to come to Court on the date of hearing. The allegations in paragraph 3 of the affidavit is as under: "i, was all along under the bona fide belief that, my case is still pending before the learned Civil Judge. I submit that after closing the evidence, the case was posted for arguments and I was told that my presence was not required. Therefore, I was all along waiting for communication from my local Counsel. But I have not received any letter". In paragraph 4 it has been mentioned that when the decree-holder had applied for execution of decree in 1995 and notice of the execution case was served, then and then only the defendant-applicant contacted her Counsel and enquired about the case and then according to averment in the affidavit, the counsel told that decree has been passed against the defendant and that Counsel had written letters intimating the passing of the decree. But the deponent has stated that letters were not received by the deponent. The applicant has asserted that the applicant came to know about the passing of the decree in september 1995 when the applicant contacted her legal Counsel. It has been stated that the applicant is poor rustic women coming from village. Time was given to the applicant to file additional affidavit, but nothing new has been brought by way of additional affidavit except that the applicant has stated that delay in filing the petition was on account of the fact that the applicant was an indigent person having no source of income.

(3.) I have heard the learned Counsel for the applicant, Sri C. P. Patil. Sri C. P. Patil submitted that the applicant did not know about the passing of the decree. She came to know about it in september 1995 when execution proceedings were launched and the applicant contacted her Counsel. He submitted that the respondent had not taken execution proceedings for 10 years, so the applicant did not and could not file. He further submitted that the applicant is a poor rustic women coming from the village folk and she is a person without means, so liberal attitude adopted by the Court for condonation of the delay. In this connection, the learned Counsel placed before me a decision of the Supreme Court in the case of Collector, Land Acquisition, anantnag and Another v Mst. Katiji and Others. The learned counsel submitted that refusing to condone the delay might adversely affect the cause of justice. But if delay is condoned, the case will be decided on merits after hearing. So, if delay is condoned the opposite party will not suffer and a liberal and pragmatic approach should be made by the Court in the matter of condonation of delay.