IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF FEBRUARY 2010
BEFORE
THE HON'BLE MRJUSTICE RAVI MALIMAT.H._'<<"[:"A:'~;. V
REQQLAR secgnn APPEAL Ng.2o31L2Qg§-[ O'
BETWEEN:
1
Dayananda Nayak _
S/o Late Lakshman Nayak' _
Aged About 68 Years, .
R/o Naga Bramasathna Road
Santhakatta, PuttuvVIi~Eage_«" " '
Udupi Taluk and Dist'rict~.57e6'iZ1:,4[*2L:-A
Sundar Nayak " _ 'V
S/O Late Laks}hrnan'1._Naya~k "
Aged Aboui'.._5'3_..Yfrs" _; . 1;. V
R/0 C/ o Su-iufessh Narayajn Y'-ac%av=_
MaVhu1..eRo'ad' '«i,____ '' V * *
Muvmbai'-A'?4._v 7'; Q
Sureshé' » . »_
Aged About 29v._Yr'sV ' V
_____
'Ag_ed_Ab'oaut 25 Yrs
3o_thO..ae re ""'of
Dayauha-nd_a reayak
A -- R/o N"aga.'ABra'rna Sathna Road
j;<.__"Santha"Ka'tta Post, Puttur Village
" 'V.VALJdu{;i_ Taiuk and District~576215.
'Nitin
Aged About 19 Yrs
Dinesh
Aged About 17 Yrs
1
f\.)
1
Both are children of
Sundar Nayak
C/o Suresh Narayana Yadav
Mahul Road
Mumbai--74. APPELLANTS.__
(By Sri. S. R. Hegde Hudlamane, Adv.)
AND :
1 Venkatesh Nayak
Aged About 47 Yrs
2 Narasima Nayak
Aged About 62 Yrs
3 Madhava Nayak
Aged About 53 Yrs
4 Bhavani Sh.a«nl;<:a*-r Aliies _f:5i_:ij§ak.eAr~:d.Ai\&ayék:«
Aged About 5(§"1"_rs.V "
Respondent No~v.._i:-tV'.:"L.;_:{Ie .. A
child ren of” ALa%<.sfL:mar1fiA: Nay"-ak'-
5 Umesého ' .
Aged About 33 Yrs _
_ 6 Q3 hash ., _
” v.A’ge(_1.,Ab.eout 2S’¥-ears
‘Bother-e. C’h:i’id.r’en’of 1″ Respondent 4
Ve’.1k’a3_._esh’~ ¥\”i_a,ya~k; V A
A A All are”—R/of.’ S-anthakatta,
Kaiyanapura, Puttur Viliage,
“U,du,oé.__Ta|u”k and Dist. — 576 215
“‘iviA’rs.Saraswathi
Aged about 83 Years
Panduranga Pai
Aged about 67 Years
Mam
10
11
12
13
14
15
16
.18
A
21
Ramesh Pai
Aged about 69 Years
Ravindra Pai
Aged about 57 Years
Vasanthi
Aged about 65 Years
Sumathi
Aged about 63 Years
Bharathi
Aged about 61 Years
Prabavathi
Aged about 59 YeaVr-:…_.”:e’-
Mrs.P.Shakuntha|a ‘V A
W/O. Shivananda Pai
‘.,;J
(
Aged about 5’.?5Y_ears. 3′
Bantakalé Va’i..¢S’r”‘u’v_a» V”
Bantato’s~t_”—
Kataxrafithi Bat
W/<1 Devatdas'-Set."
Aged About 56’Yea,rs’~.«–“:
Ejahumathiwugi, Sirsi
V-‘ft_S’a~rsg§..t}~;;:it_ut<, U}!<;–~-'–".3*ist
W tjpend ra Pai
Aged. 'avb_out~E37 Years
'"€ha-r1'1'p'a':""
Aged’:.about 29 Years
jdsandya
” Aged about 27 Years
Asha
Aged about 26 Years
Rekha
2. The case of the plaintiffs is that, plaintiffs-1 and 2 and
defendants–3 to 6 are the children of the first and second
defendants and defendants»? and 8 are the minor of
third defendant. Piaintiffs–3 and 4 are minor
first plaintiff and plalntiffs~S and 6 are minor”c’hild»ren::ofV if
second plaintiff. On a share being de.mahdée7d,4«’i.t’.:ihrasélreireamdi
that the 9″‘ defendant had filedxa suit-._’i’n
before the Civil Judge (Jr..Dn.), tgwes’ by the
first appellate court in the Civil Judge,
Udupi and confirmed by 1979 on
23.3.1989. the back of
the plaintiffs, seeking for partition.
13 a’nd:”.by–considering the evidence on
record, the suitélolf the Va’p’pe!’:l’a–nts’ e plaintiffs was dismissed and
an appeal ‘was preferred before the first appellate court along
under Section 5 of the Limitation Act
seel'<in'g__clo'r:d'onat.i:on' of the delay of about 801 days in filing
the appeal.v-.."Tne'first appellate court considered the application
came to the conclusion that since no sufficient cause has
t'_j_e_er*…Vm'ade out, rejected the I.A.I and consequently the appeal
if :l)yas–dismlssed as being time barred. Aggrieved by the same,
the present appeal is filed.
“:3/4″”
3. Sri.Hegde i-iudlamane, learned Counsel appearing for
the appellants contends that, the first appellate court was in
error in not condoning the delay and considering the appeal on
merits. He accordingly pleads that substantial questionsjof law
arise for consideration in this appeal. Therefore.,«~~–hei’:pleads,
that the substantial question of law
consideration is, as to whether the ap;pella:te;court
in not applying the principleselaid down. in the’:j’udgrnie’nts’g
reported in 2005(4) KCCR 2281″V”i’inHlthe m’atte’ir’–v-of.’::§TATE or
NAGALAND –~vs~ LIPOK ;¢li:§’}”i~,,/llN_§Nc§A’l”.l?!;f!§vf5~-_and Am 1998 SC
3222 in the ‘matter :lV.B.¥lL2<i,i{£?.JSHNAN –\/S*
M. KRIsHivA'Mo'iéjf;?ir."': '$1: l
4. l;lear’dVt’h,e”‘v’,_lie.arniéfil«Counsel for the appellants.
Respondents have been served and remained unrepresented.
. _ 5*.{‘In.”i’su’p.pAort application seeking condonation of
d’ei.ay.,;-iti’ that the Counsel appearing in the trial
informed the lapplellants that the suit has been decreed. Since
suit has been decreed and if and when the other side
“‘wfouVi’d~..fi’,l.e an appeal, he will intimate with regard to the same.
“cV%’:’i~lowever, even after long lapse of time, they did not receive
information from their Advocate. In order to effect the
V5”
partition, a document writer was approached, who said that
the judgment and decree in the present suit viz.,
O.S.No.841/1989 was required and when they approached
their Advocate for the same, they were told that it wjas.,two
years’ old case and it is not easy to find
Thereafter, they came to know that the_.s_uit._
dismissed. It is further stated on thatlthie .:l_.:awf,r.er’
apologized for giving false information éandtan app–‘l.iic’a’tion
made and on receipt of the copuyfliof the “order-h,’ present
appeal is filed. Hence, it th’a.t. it isvvbohafide and
the delay in filing the application regltiirg–¢,lVtol.I’,be’,’.condoned.
6. TVvl’1’e”‘i’Ei.rsti,apip-e’l*!a’te,;’court_'”‘while considering the said
affidavit came to the:.c’o.nclusi-o:n,..that no evidence has been let
in in support of iI;A,IV’vanld_:the Advocate, who has caused this
fdelay, ..w”as,g_n:ot..,_exan9iir”ive–c5«.” Hence, the appellate court came to
the conclusviori ,,t’ha’t’—-no sufficient cause has been made out and
¢,_the a’pp’l’iicati_onV’tiEetiuires to be rejected.
7. the judgments relied upon do not refer to the
._co’ndonat«ion of delay being granted on an application being
‘ AIR 1998 SC 3223 would indicate the manner in which
application for condonation of delay should be considered.
Q34″
That utmost consideration should be shown to the suitor and
the door should not be shut against him. However, in the
instant case, it could been seen that the applEca_ti..o_ir:..,_:’la_cks
bonafides inasmuch as there is no effort
appellants to justify the delay in filing the””a’pp’_ea’l’;::
otherwise, the order sheet would disclose~tl:iat,*on-.’a”nurraibe’i=:,of
occasions, the appellants themselves have Vrenfiailne.d,,Habsentg
This would, no doubt, lead to neither the
application is bonafide interested in
prosecuting their legal l’eFl_’2€£.’r§.€S. even if
applied to to the aid of the
appellants. “”” I-ion’ble Supreme
Court came that the applications should
receive a liberal.cori~strLi’ct.io”n.,is’In the facts and circumstances
of this d;’a”se, eve”n__V_ifliberality is stretched to the maximum
V”.ext:en.t_,””the’ would still not constitute sufficient cause in
the Limitation Act. Firstly, the appellants
V have very conveniently blamed their lawyer for not only giving
Enforrnastion stating that the suit has been decreed, when
‘real’i’Ly’, it has been dismissed, but on the other hand, if the
…clonteVnts of the affidavit would be true, they should have
lssllhrisghtly examined the Advocate with regard to the said facts.
WK”