Karnataka High Court
Rukmawwa W/O. Basappa Petalur Alias ... vs Ningappa S/O. Shambulingappa ... on 25 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:10562-DB
RFA No. 100476 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100476 OF 2023 (DEC/INJ)
BETWEEN:
1. RUKMAWWA
W/O. BASAPPA PETALUR ALIAS PETLUR,
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. VENKATAPUR-591310,
TQ. GOKAK AND DIST. BELAGAVI.
2. TAYAWWA
W/O. NEELAPPA HULAGANNAVAR
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. HONAKUPPPI 591227,
TQ. GOKAK, DIST. BELAGAVI.
3. RENUKA
W/O. RAMAPPA MAKANNAVAR
AGE. 38 YEARS, OCC. AGRICULTURE,
Digitally signed R/O. KAMANAKATTI-591136,
by GIRIJA A
BYAHATTI TQ.GOKAK, DIST. BELAGAVI.
Location: HIGH
COURT OF
KARNATAKA
4. ANNAPURNA
W/O. RAMESH DONI
AGE. 36 YEARS, OCC. AGRICULTURE,
R/O. SUNADHOLI-53110,
TQ. GOKAK, DIST. BELAGAVI
...APPELLANTS
(BY SRI. ARUN L. NEELOPANT AND
MISS. KAVITA S. JADHAV, ADVOCATES)
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NC: 2024:KHC-D:10562-DB
RFA No. 100476 of 2023
AND:
1 . NINGAPPA
S/O. SHAMBULINGAPPA GOLIPALLE
AGE. 59 YEARS, OCC. AGRICULTURE,
R/O. KAMANAKATTI, TQ. GOKAK AND
R/O. GALAGALI 587117,
TQ. MUDHOL, DIST. BAGALKOT.
2 . GOURAWWA
W/O. MALLAPPA KUTAKANAKERI
AGE. 63 YEARS, OCC. AGRICULTURE,
R/O. GALAGALI 587117,
TQ. MUDHOL, DIST. BAGALKOT.
3 . ANNAPURNA W/O. IRAPPA SHIROL
AGE. 57 YEARS, OCC. AGRICULTURE,
R/O. HUNNUR-587119,
TQ. JAMAKHANDI, DIST. BAGALKOT.
... RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 R/W
ORDER 41 RULE 1 CPC., AGAINST THE JUDGMENT AND DECREE
DATED 26.08.2019 PASSED IN O.S.NO.66/2018 ON THE FILE OF THE
1ST ADDITIONAL SENIOR CIVIL JUDGE GOKAK, DECREEING THE SUIT
FILED FOR DECLARATION AND PERMANENT INJUNCTION.
I.A.1/2023 IS FILED UNDER ORDER 41 RULE 3A OF CPC R/W.
SECTION 5 OF THE LIMITATION ACT, FOR CONDONATION OF DELAY
OF 637 DAYS IN FILING THE APPEAL.
THIS APPEAL AND I.A.1/2023 HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON I.A.1/2023 ON 18/07/2024 AND
COMING ON FOR 'PRONOUNCEMENT OF ORDERS' THIS DAY,
T.G.SHIVASHANKARE GOWDA J., PRONOUNCED THE FOLLOWING:
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NC: 2024:KHC-D:10562-DB
RFA No. 100476 of 2023
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA) ORDER ON I.A.1/2023 The defendants have filed the present appeal challenging the judgment and decree dated 26.08.2019 passed in O.S.No.66/2018 by the I Addl. Senior Civil Judge, Gokak, decreeing the suit of the plaintiffs, that they are the exclusive owners in possession of the suit schedule property and restraining the defendants from interfering with their possession and enjoyment.
2. The suit schedule property consists of 7 acres of land in RS No.95/2/P2, out of 12 acres (PK-08 guntas) situated at Kamanakatti village of Gokak Taluka.
3. There is a delay of 637 days in preferring this appeal. Seeking condonation of delay, I.A.1/2023 is filed under Order 41 Rule 3A of CPC read with Section 5 of the Limitation Act.
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NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 3(a) In support of the application, defendant No.1 - Smt. Rukmawwa has sworn to an affidavit that she and other defendants are illiterate and rustic village ladies residing in different villages, working in lands for their livelihood. They are unaware of the legal consequences of non-appearance before the Court proceedings. After receipt of the suit summons, she made enquiry with the plaintiffs, in turn, plaintiffs assured her to settle the matter before the elders after service of notice to the defendant No.3. They have waited for service of notice to defendant No.3. The plaintiffs have taken service of notice to defendant No.3 through paper publication and it never came to their knowledge, nor the plaintiffs had informed them about service of notice to defendant No.3. Behind the back of them, plaintiffs have obtained ex-parte decree during the Covid period.
3(b) It is further sworn that, in the month of July 2023, plaintiffs started obstructing possession of the defendants in agricultural activities on the ground that they have obtained the judgment and decree against them. Immediately on coming to know about this, they have approached their advocate and came to know about ex-parte judgment and decree passed -5- NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 against them. Without making any delay, they have approached the advocate and preferred the appeal. They have good case on merits and therefore, if the delay is not condoned, they will be put to great injustice.
4. The plaintiffs have filed counter to the application, contending that the suit was decreed on 26.08.2019. There is an inordinate delay of 1727 days. The delay is not explained by the defendants. The defendants have not come with clean hands and they are not entitled to discretionary and equitable relief. Non-service of notice to defendant No.3 is not a ground for defendants No.2 and 4 to wait without filing the written statement and appearing before the Court. They have denied the approach made by defendants No.1 to 4 and plaintiffs promising them to settle before the elders after service of notice to defendant No.3. It is further contended that the father of the plaintiffs had purchased 04 acres of land on 31.12.2016 and 3 acres on 07.08.1998, from the father of defendants. Thereby, the plaintiffs came in possession and enjoyment of the property. After the demise of their father, defendants colluding with each other, filed a suit in O.S.No.134/2013 and got compromised themselves in respect -6- NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 of 3 acres of land purchased by the father of the plaintiffs in the year 1998 and hence the plaintiffs were constrained to file the suit. In spite of service of notice, defendants No.1, 2 and 4 remained absent and placed ex-parte. The defendants have exercised their right and ownership in respect of 4 acres 32 guntas of land, what remained after sale of 3 acres in favour of the father of the plaintiffs. By a registered sale deed on 18.08.2022, the defendants have sold the entire 4 acres 32 guntas. In order to harass the plaintiffs, defendants have filed the present appeal suppressing the truth and sought for dismissal of the application as well as the appeal.
5. We have heard the arguments of Sri. Kavitha Jadhav, learned counsel for the defendants/appellants, Sri.Mrutyunjaya Tata Bangi, learned counsel for the plaintiffs/respondents and perused the records.
6. Learned counsel for the defendants has argued in line with the affidavit sworn to by the first defendant and further contended that defendants 1, 2 and 4 are served with summons, they approached plaintiff No.1, who promised to compromise and to settle the dispute after service of notice to defendant No.3. They were waiting for the call of plaintiffs. -7-
NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 The plaintiffs without informing service of notice to the defendant No.3 through paper publication, prevented these defendants from appearing before the Court and obtained the decree. The defendants being the illiterate ladies, have been prevented on account of the indulgence of the plaintiffs and if an opportunity is provided, to contest the suit, no prejudice will be caused to the plaintiffs.
7. Per contra, learned counsel for the plaintiffs/respondents argued in line with the statement of objections filed to the application. It is further contended that, defendants No.1 to 4 were very well knew about the pendency of the suit against them. They were kept quiet for the reason that their father sold the property in favour of father of the plaintiffs. The delay of 1727 days has not been properly explained. When the suit was pending for appearance of the defendants, there was no Covid-19. The defendants wanted to take advantage of the Covid-19 on account of exclusion of period of limitation. That benefit of Covid-19 cannot be extended to the defendants as they were placed ex-parte even prior to the inception of Covid-19 and also judgment was -8- NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 passed prior to Covid-19 inception and sought for dismissal of the application.
8. Now the point that arises for our consideration is;
"Whether the defendants have made out
sufficient grounds for condonation of delay?
9. Before considering the application for condonation of delay, it is relevant to refer the case pleaded by the plaintiffs. The plaintiffs have filed the suit for declaration of title and consequential relief of permanent injunction against the defendants, in respect of 7 acres of land in Survey No.95/2/P2 of Kamanakatti village of Gokak Taluk. It is their case that, the father of the plaintiffs Shambulingappa has acquired the title over the said 7 acres of land, firstly 4 acres of land under the sale deed dated 22.08.1996 for consideration of Rs.32,000/-, from the erstwhile owner of the said land and 3 acres of land under sale deed dated 07.08.1998 for a consideration of Rs.22,666/- from the father of the defendants.
10. The father of the plaintiffs was put in possession of the property and he continued in possession. After the death of the father, the plaintiffs are continued to be in possession and enjoyment of the property. As the defendants tried to interfere -9- NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 with their peaceful possession and enjoyment and they have also filed collusive suit in O.S.No.134/2013 and got compromised the matter suppressing the sale in favour of the father of the plaintiffs, hence they were constrained to file the present suit.
11. As observed above, in spite of service of notice, defendants No.1 to 4 remained absent and placed ex-parte before the Trial Court. Service to defendant N.3 was taken through paper publication. The defendants admit service of summons to defendants No.1, 2 and 4. Thereafter, they claimed to have approached the plaintiffs. They were sent back with a promise of settlement after service of notice to defendant No.3. It is contended, the service on defendant No.3 was not made known to the defendants and hence, they remained absent till the plaintiffs started interfering with their possession after obtaining the judgment and decree.
12. The records show that, before the Trial Court, the plaintiffs have led the evidence and the suit was considered on merits and the judgment was passed on 26.08.2019, declaring that the plaintiffs are the owners of the suit schedule property restraining the defendants from interfering with their
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NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 possession. The plea of the defendants that they are illiterate cannot be substantiated as they were well aware that the suit of the plaintiffs was pending against them for the relief of declaration. In spite of knowing the same, they have kept quiet. The judgment though pronounced on 26.08.2019, the defendants were pleaded ignorance about the same. The Courts were reopened for the litigant public after Covid-19 with effect from 15.03.2020, whereas the appeal is filed on 07.08.2023, after almost two years of reopening of the Court. The explanation offered by the defendant No.1 that she was not aware of judgment and decree is not substantiated. When the defendants were aware of the pending proceedings, nothing prevented them from appearing before the Court and put forth their defence. On the ground of illiteracy and seeking indulgence of the Court as they are the ladies, is only a ground for sympathy and we do not find any reason to accept the affidavit filed by defendant No.1 for condonation of delay, which do not constitute sufficient cause.
13. Even on perusal of the impugned judgment that the suit is based on the sale in favour of the father of the plaintiffs, by the father of the defendants, no materials are placed that
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NC: 2024:KHC-D:10562-DB RFA No. 100476 of 2023 the defendants have challenged the alienation by their father in favour of the father of the plaintiffs. We do not find any substance, which constitute sufficient grounds even on merits.
14. In view of our above discussions, there are no reasons to condone the delay.
15. In the result, the following:
ORDER I.A.1/2023 filed by the defendant/appellants seeking condonation of delay in filing this appeal is hereby dismissed.
Consequently, the appeal is dismissed as barred by time.
Sd/-
JUDGE Sd/-
JUDGE gab Ct-cmu List No.: 1 Sl No.: 25