VASANT LAXMAN AKALWADI Vs. SUBBARAJ DATTAKA FATHER RAJGOPAL

JUDGEMENT

(1.) This application is filed by the appellant under Section 5 of the Limitation Act seeking to condone the delay of 823 days in filing the appeal. The appellant- Vasant Laxman Akalwadi has sworn to an affidavit annexed to the application that this appeal is filed against impugned order of the lower appellate Court in R.A.No.272 of 2015, wherein his appeal was dismissed as barred by principles of res judiceta and not maintainable.

(2.) After passing the impugned order dated 23.08.2016, he applied for certified copy on 16.09.2016 and the same was supplied to him on 29.09.2016. At that time of FDP No.4 of 2007 in respect of the same subject matter was pending. Hence, he was advised that whatever the relief he needs in this appeal can be availed, if he succeeds in FDP.No.4 of 2007. The said FDP was decided against him and against that he preferred R.A.No.256 of 2016 before the Principal District Judge, Dharwad and the said appeal was dismissed on 03.04.2018. Thereafter, once again he was advised to prefer a civil revision petition before this Court in order to avoid legal complications. Therefore, he filed C.R.P.No.100050 of 2018 which was dismissed on 09.01.2019 as not maintainable and liberty has been granted to avail appropriate remedy against the impugned order. Hence, the delay has occurred in filing this appeal. Delay is due to unavoidable circumstances and no fault on his part. If the delay is not condoned he will be put to great hardship and irreparable loss and his legal right by first appeal has been denied by the impugned order.

(3.) The respondent No.1 has filed the statement of objections on the application stating as follows : The appellant has challenged the order dated 23.08.2016 passed by the II Additional District and Sessions Judge, Dharwad in R.A.No.272 of 2015 wherein the appeal filed by the appellant herein was dismissed. The impugned order was passed on 23.08.2016 and the present appeal is filed on 22.02.2019 and there is delay of 823 days in filing the appeal. There is no any kind of proper explanation for condonation of delay. The appellant has stated that FDP.No.4 of 2007 was pending in respect of the same subject matter and he was advised that whatever the relief he needs in this appeal can be availed, if he succeeds in FDP.No.4 of 2007. After the dismissal of the said FDP, appellant herein filed R.A.No.256 of 2016 which was dismissed on 03.04.2018. Thereafter, the appellant filed CRP.No.100050 of 2018 which was also dismissed. The appellant has obtained certified copy of the impugned order immediately after the order was passed. Therefore, the pendency of the FDP can not preclude the appellant from filing the appeal and the same cannot be a ground to condone the delay and latches. FDP is of the year 2007. The appellant had challenged the decree passed in FDP and the said appeal was also dismissed and thereafter regular second appeal was filed in respect of FDP and the same was also dismissed by this Court. Therefore, question of challenging the preliminary decree at this stage does not arise. The appellant kept quit from 23.08.2016 till 27.06.2018. The civil revision petition was also filed nearly after three years from the disposal of the regular appeal. The appellant has to show sufficient cause for condonation of delay, otherwise same cannot be condoned. It is well settled principle of law that a litigant, whether it is an individual or a Government body or any legal entity, it owes a duty to be vigilant of its rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against it or initiated at its instance. Respondent No.1 herein had filed suit in the year 1992 and out of the said suit appellant herein has consistently preferred one after the other litigation and has already preferred four R.S.A's before this Court and all of them have been answered against him. The conduct of the appellant is very much clear that his intention is only to keep the litigation going on. The contentions on merits have already been considered by this Court and have been negatived in the previous four R.S.A's. The present appeal is false, frivolous and vexatious and the same is untenable in the eyes of law or on the facts of the case. The appeal is not maintainable and liable to be dismissed by awarding exemplary costs. Application for condonation of delay is devoid of merits and is liable to be rejected.