Karnataka High Court
Susheela vs Muddu Poojary Died on 3 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 1705 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1705 OF 2015 (PAR)
BETWEEN:
1. SUSHEELA
D/O LATE KRISHNAPPA KOTIAN
AGE 57 YEARS,
2. SUMATHI
D/O LATE KRISHNAPPA KOTIAN
AGE 56 YEARS,
3. CHANDRA
D/O LATE KRISHNAPPA KOTIAN
AGE 55 YEARS,
4. MOHANA
D/O LATE KRISHNAPPA KOTIAN
AGE 54 YEARS,
5. SUDHAKARA
SINCE DECEASED BY LR's
Digitally signed 5(a) DEVIKA S AMIN
by D/O LATE SUDHAKARA
NARAYANAPPA (AMENDED AS PER ORDER DATED 7.11.19)
LAKSHMAMMA
Location: HIGH 6. SULOCHANA
COURT OF D/O LATE KRISHNAPPA KOTIAN
KARNATAKA AGE 51 YEARS,
ALL ARE PERMANENT RESIDENTS OF
ADI UDUPI, NEAR MARKET YARD,
KODAVOORU VILLAGE,
UDUPI TALUK AND DISTRICT-576101
...APPELLANTS
(BY SRI. UDAYA HOLLA., SR. ADVOCATE FOR
SRI. B S PRASAD .,ADVOCATE)
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RSA No. 1705 of 2015
AND:
1. MUDDU POOJARY DIED
DEAD BY HIS LEGAL HEIRS AS
1(a) NARANAPPA POOJARY
1(b) GULABI POOJARTHY
1© SHANKARA POOJARY
1(d) APPI POOJARTHY
1(e) JAYANTHI POOJARTHY
1(f) BHASKARA POOJARY
1(g) SUNDARA POOJARY
1(h) GOPALA POOJARY
1(i) VANAJA POOJARTHY
1(j) RAJU POOJARY
ALL ARE RESIDING AT KAKKUNJE,
AMBAGILU POST, SANTHEKATTE,
SHIVALLI VILLAGE,
UDUPI TALUK-576101
2. SUNDARA
S/O LATE KRISHNAPPA POOJARY,
AGE 52 YEARS,
R/O NEAR MARKET YARD, ADI UDUPI,
KADAVOOR VILLAGE,
UDUPI TALUK AND DISTRICT-576101
3. BOODA POOJARY
S/O KOOSU POOJARTHI
AGE 72 YEARS,
4. BIDRI POOJARTHI
D/O KOOSU POOJARTHI
AGE 69 YEARS,
5. THANNERU POOJARTHI
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RSA No. 1705 of 2015
D/O KOOSU POOJARTHI
AGE 67 YEARS,
6. GIRIYA POOJARY
S/O KOOSU POOJARTHI
AGE 66 YEARS,
7. SUNDARI
D/O RANGU POOJARTHI
AGE 67 YEARS,
8. SHARADA
W/O RAGHU
AGE 49 YEARS,
9. MALLIKA
D/O LATE RAGHU
AGE 41 YEARS,
10. RAVI
S/O LATE RAGHU
AGE 39 YEARS,
11. NAYANA
D/O LATE RAGHU
AGE 37 YEARS,
12. RAGHU
S/O RAGHU POOJARTHI
AGE 63 YEARS,
13. SHANKARA
S/O SHEKARA
AGE 62 YEARS,
14. BABURAYA
S/O SANKI
AGE 43 YEARS,
15. ASHOKA
S/O JALAJA
AGE 57 YEARS,
16. JYOTHI
D/O JALAJA
AGE 45 YEARS,
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RSA No. 1705 of 2015
17. SANTHOSHA
S/O JALAJA
AGE 44 YEARS,
18. JAGADISHA
S/O JALAJA
AGE 40 YEARS,
RESPONDENTS 1 TO 18 ARE
R/O ADI UDUPI, AMBALAPADI,
UDUPI TALUK AND DISTRICT-576103
19. DEJU
S/O THOMA POOJARY
AGE 55 YEARS,
20. GULABI
D/O THOMA POOJARY
AGE 52 YEARS,
21. RAMESH
S/O THOMA POOJARY
AGE 50 YEARS,
22. SUMATHI
D/O THOMA POOJARY
AGE 45 YEARS,
RESPONDENTS 19 TO 22 ARE
RESIDENTS OF NEAR HANUMAN GARAGE,
BAILORE, 76 BADAGABETTU VILLAGE,
POST UDUPI,
UDUPI TALUK AND DISTRICT-576103
23. MAHABALA
S/O KORAGA POOJARY
AGE 69 YEARS,
24. SUNDARA
S/O KORAGA POOJARY
AGE 67 YEARS,
25. LALITHA
D/O KORAGA POOJARY
AGE 65 YEARS,
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RSA No. 1705 of 2015
26. VASANTHI
S/O KORAGA POOJARY
AGE 55 YEARS,
27. VISHWANATHA
S/O KORAGA POOJARY
AGE 50 YEARS,
28. SARITHA
D/O KORAGA POOJARY
AGE 45 YEARS,
29. KRISHNA
S/O KORAGA POOJARY
AGE 42 YEARS,
RESPONDENTS 23 TO 29 ARE
RESIDENTS OF VISHNUMOORTHY NAGARA,
POST NITTUR,
PUTTUR VILLAGE
UDUPI TALUK AND DISTRICT-576103
...RESPONDENTS
(R1(a-j) SERVED AND UNREPRESENTED;
V/O DATED 15.7.2022 NOTICE TO R2-R9 D/W)
THIS RSA FILED UNDER SEC.100 OF CPC., PRAYING TO SET
ASIDE THE ORDER DATED 31.7.2015 PASSED BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE, AT UDUPI, IN R.A.UN-
NUMBERED/2006 BY DISMISSING THE I.A.NO.3 AND ALSO SET-
ASIDE THE JUDGMENT AND DECREE DATED 27.11.2004 PASSED BY
THE LEARNED PRINCIPAL CIVIL JUDGE (JR.DN.) AT UDUPI, IN
O.S.NO.289/99, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS RSA, COMING ON FOR DISMISSAL FOR NON-
PROSECUTION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1705 of 2015
JUDGMENT
1. The Appellants are before this Court seeking for the following relief:
"Set-aside the order dated 31.7.2015 passed by the learned Principal Senior Civil Judge, at Udupi, in R.A.Un-numbered/2006 by dismissing the I.A.No.3, and also set-aside the judgment and decree dated 27.11.2004 passed by the learned Principal Civil Judge (Jr.Dn) at Udupi in O.S.No.289/99, in the interest of justice and equity."
2. The appellants were defendants in O.S.No.289/1999 filed before the Principal Judge (Jr.Dn.), Udupi. The said suit in the suit having been filed seeking for relief of partition and separate position. O.S.No.289/1999 came to be decreed granting the plaintiff 1/6th share in plaint 'A' schedule properties and Issue Nos.2 and 4 were left open for deciding during final decree proceedings.
3. Challenging the same, an appeal in RA unnumbered of 2006 came to be filed on 10.03.2006. There was a delay of 417 days in preferring an appeal. Hence, an application in I.A.No.3 under Section 5 of the -7- NC: 2024:KHC:25099 RSA No. 1705 of 2015 Limitation Act was taken for consideration. The first Appellate Court being of the opinion that 417 days delay is inordinate, explanation offered is not proper dismissed the said application thereby not taking on record the Regular Appeal. It is challenging the same, the appellants are before this Court.
4. A perusal of the impugned order dated 31.07.2015 in RA unnumbered of 2006 would indicate that the judgement in the suit was passed on 27.11.2004. The appellants are the children of Kamala who was defendant No.1 before the trial Court. The mother Kamala was conducting the affairs in respect of the plaint properties and she was handling the suit before the trial Court. She became sick and unable to attend the matter and thereafter she expired on 30.12.2005 without taking any steps to file an appeal to challenge the judgment and decree dated 27.11.2004. It is further contended that other appellants being her children were residents of -8- NC: 2024:KHC:25099 RSA No. 1705 of 2015 Mumbai and did not know about the pendency of the proceedings to take necessary action by filing an appeal.
5. A perusal of the order would also indicate that once the matter was taken up for evidence, evidence was led by one Sudhakara S/o Kamala who also expired on 13.03.2011 and as such, the matter before the first Appellate Court proceeded for inordinate long period of time in his absence and subsequently, his evidence being struck of, the third plaintiff was examined on 01.03.2014 on behalf of the appellants.
6. The respondents not having led evidence, the first Appellate Court came to a conclusion that the witness used to visit the native place from time to time ought to have filed an appeal within time. The first Appellate Court refused to accept the contention that due to the death of his mother, the appeal could not be filed within time and that the delay of 417 days was inordinate.
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7. This reasoning of the first Appellate Court in my considered opinion is flawed inasmuch as once it has been admitted that the mother was conducting the litigation and she had expired on 30.12.2005, the appeal having been filed on 10.03.2006 within a short period thereafter taking into consideration that the mother was sick, unwell and expired and thereafter it normally takes some time for the family members to ascertain the requirement of filing the appeal and set the family affairs in order, the first Appellate Court ought to have condoned the delay of 417 days. Merely because the witness who was residing in Mumbai was visiting Udupi from time to time, the first Appellate Court ought not to have come to a conclusion that he had the opportunity for filing the appeal within time. In that view of the matter and in the interest of justice, I am of the considered opinion that the order passed by the first Appellate Court is required to be set aside.
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8. In view of the above, I am of the considered opinion that there is no substantial question of law which arises, and it is the interest of justice would be required to be preserved. The appellants would necessarily have to be put to terms in view of the time spent in the matter and now the matter being taken up by the first Appellate Court, the appellants are directed to make payment of a sum of Rs.10,000/- to each of the contesting respondents.
9. Hence, I pass the following:
ORDER
i) The appeal is partly allowed.
ii) The delay of 417 days in preferring the appeal is condoned.
iii) The matter is remitted to the Principal Senior Civil Judge, Udupi for fresh adjudication on merits after issuing necessary notice to the respondents.
Sd/-
JUDGE PRS / List No.: 1 Sl No.: 8