Skip to content


Adi Lakshamma Vs. Subbarayappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 52 of 1949-50
Judge
Reported inAIR1953Kant137; AIR1953Mys137; ILR1953KAR165
ActsLimitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 3
AppellantAdi Lakshamma
RespondentSubbarayappa
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateD. Shama Rao, Adv.
Excerpt:
.....circumstances. the propounder of the will has failed to remove the suspicious circumstances. petitioner are not entitled to the letters of administration sought for. - nothing shall be deemed to be done bona fide or in good faith which is not done with due care and caution. bai gungabai',30 bom 329 (c) :when the time for appealing is once past, a very valuable right is secured to the successful litigant and the court must therefore be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of the time for attaching the decree and thus perhaps depriving the successful litigant of the advantages which he has obtained......to expect that she would have reached kolar so as to be able to contact her lawyer and get the appeal filed within time on that very day. she must be expected to have known that she may not get a seat in one or the other buses, by which she had to travel to kolar. considering these circumstances it cannot be said that what she did was done with due care and caution. it is a clear case in which delay could have been avoided by due care and attention and in spite of the fact that in this case the delay is short it cannot be said that there is sufficient cause within the meaning of section 5 of the limitation act.5. one should not easily be led away by the fact that the time of delay is short, as it must be remembered that the respondent gets a right by the appeal being not filed within.....
Judgment:

1. This is an appeal against the order of the lower appellate Court dismissing the regular appeal on the ground that it is barred by time and refusing to condone the delay of one day in filing the appeal. The appeal ought to have been filed on 20-12-48, but was filed on the next day.

2. According to the affidavit filed by the appellant, she started from Manchenahalli on 20-12-1948, the last day on which she could have filed the appeal, to go to Kolar for that purpose. She could not however catch the first bus as there was already some rush of passengers bound for Bangalore, viz., Chick-ballapur on account of the visit of Pandit Nehru, a few days later. She caught the next bus and came to Chickballapur. By the time she went to Chickballapur, all the buses that go to Kolar from that place had already loft: as such she had to go to Kolar on the next day and file the appeal. The learned Subordinate Judge refused to condone the delay of one day and. dismissed the application filed for condonation of the delay. The appeal was dismissed as barred by time.

3. It must be remembered that when discretion is exercised by the lower Court the appellate Court does not ordinarily interfere with the decision of the lower Court. As observed in -- 'Thimme Gowda v. Kemparasa', 10 Mys LJ 117 (A).

'While the High Court is not precluded from interfering with the first appellate Court's decision under Section 5 of the Limitation Act, itshould not ordinarily upset the decision of the lower appellate Court if it is based on a proper exercise of discretion, whatever inferences the High Court, itself sitting as a first appellate Court, might draw regarding the causes urged for delay in presenting the appeal.'

4. The point for consideration is whether this is a fit case in which this Court has to interfere with the order of the learned Subordinate Judge who has refused to condone the delay particularly when it was a case of a delay of only one day. The learned Subordinate Judge had the discretion not to accept the reasons given by the appellant. But it has to be remembered that the discretion must be exercised not in any arbitrary manner but strictly on judicial principles. It is not easy to state definitely when it could be said that the discretion is used in a proper manner and each case has to be decided on the circumstances of that case. It is sometimes urged that the delay of a day or two is very short and that itself is sufficient for condoning the delay. The fact that the delay is short is certainly one of the circumstances that will have to be taken into consideration in using the discretion. That does not mean that the fact that the delay is short is by itself sufficient in all cases for condoning the delay. Under Section 5, Limitation Act, the delay can be condoned 'when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the period allowed by law.' The cause for the delay in filing the appeal cannot be said to be sufficient unless it is a bona fide cause. Nothing shall be deemed to be done bona fide or in good faith which is not done with due care and caution. In this case the appeal had to be filed on the 20-12-1948. The appellant was in a village near Chickballapur. She had to catch two buses in order to go to Kolar and file the appeal. Even if she had caught the very first bus which leaves Manchanahalli, it is difficult to expect that she would have reached Kolar so as to be able to contact her lawyer and get the appeal filed within time on that very day. She must be expected to have known that she may not get a seat in one or the other buses, by which she had to travel to Kolar. Considering these circumstances it cannot be said that what she did was done with due care and caution. It is a clear case in which delay could have been avoided by due care and attention and in spite of the fact that in this case the delay is short it cannot be said that there is sufficient cause within the meaning of Section 5 of the Limitation Act.

5. One should not easily be led away by the fact that the time of delay is short, as it must be remembered that the respondent gets a right by the appeal being not filed within the period allowed by Law. As observed by Davey L. J. in -- 'In re: Helsby; Trustee, Ex parte', (1894) 1 QB 742 (B):

'Upon the question whether time ought to be extended, speaking for myself, I am inclined to adopt the view of the late James L. J., that a party has a vested right in an order of the Court in his favour and ought not to be deprived of an advantage given him by the rules, 'unless there has been on his part, some conduct raising an equity against him.'

6. Again it has been observed by Sir Lawrence Jenkins C. J. in -- 'Karsondas Dhurmsey v. Bai Gungabai', 30 Bom 329 (C) :

'When the time for appealing is once past, a very valuable right is secured to the successful litigant and the Court must therefore be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of the time for attaching the decree and thus perhaps depriving the successful litigant of the advantages which he has obtained.'

The following observations of Dawson-Miller C. J. in -- 'Jahar Mal v. Pritchard', AIR 1919 Pat 503 (D) are also useful in considering whether delay in filing the appeal can be condoned in cases of this kind. 'Sufficient time in all these cases is granted to the parties for doing whatever may be necessary for furthering their suit, and if they choose to put off until the very last minute either the filing of the appeal or the taking of any other steps which are a necessary part of the prosecution of their case, they run a very great risk and it dees not seem to me that it is sufficient for a party to come to Court and say that if everything had gone absolutely smoothly and if no unexpected accident had happened, he would have been in time in taking the steps required for his appeal. One is not entitled to put things off to the last moment, and hope that nothing will occur which will prevent them from being in time. There is always the chapter of accidents to be considered, and it seems to me that one ought to consider that some accident or other might happen which will delay them in carrying out that part of their duties for which the Court prescribes a time limit, and if they choose to rely upon everything going absolutely smoothly and wait till the very last moment, I think they have only themselves to blame if they should find that something has happened which was unexpected but which ought to be reckoned with, and are not entitled in such circumstances to the indulgence of the Court.'

7. Considering the particular circumstances of this case, I do not think that the learned Subordinate Judge was wrong in dismissing the appeal as barred by time and in refusing to condone the delay as prayed for in the application. This appeal stands dismissed. No order as to costs.

8. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //