Karnataka High Court
Sri Kumara vs Sri Sanjeevaiah on 17 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.30 OF 2022 (PAR/POS)
BETWEEN:
SRI. KUMARA,
S/O SANJEEVAIAH,
AGED ABOUT 46 YEARS,
R/O MASKAL VILLAGE,
GULUR HOBLI, TUMKUR TALUK,
TUMKUR - 572 118.
... APPELLANT
(BY SRI.V.B.SIDDARAMAIAH, ADV.)
AND:
1. SRI. SANJEEVAIAH,
S/O KEMPAIAH,
AGED ABOUT 74 YEARS,
2. SMT. PARVATHAMMA,
W/O NANJAPPA,
D/O SANJEEVAIAH,
AGED ABOUT 48 YEARS,
R/O VEERANANJIPURA,
NELAMANGALA TALUK,
BANGALORE DISTRICT.
3. SMT. BHAGYAMMA,
W/O HANUMANTHARAYAPPA,
2
D/O SAJEEVAIAH,
AGED ABOUT 46 YEARS,
R1 AND R3 ARE
R/O MASKAL VILLAGE,
GULUR HOBLI,
TUMKUR TALUK,
TUMKUR - 572 118.
4. SMT. SARASWATHI,
W/O NAGARAJU,
D/O SANJEEVAIAH,
AGED ABOUT 43 YEARS,
R/O GOVINAHALLI, KULLENAHALLI POST,
NELAMANGALA TALUK,
TUMKUR - 562 111.
... RESPONDENTS
THIS APPEAL IS FILED UNDER ORDER XLII RULE 2
R/W SECTION 100 OF CPC 1908., AGAINST THE
JUDGMENT AND DECREE DATED 02.04.2008 PASSED IN
RA.No.88/2007 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE (SR.DN) TUMKUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
05.04.2007 PASSED IN OS No.11/2006 ON THE FILE OF
THE II ADDITIONAL CIVIL JUDGE (JR.DVN) AND JMFC,
TUMKUR.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal has been filed with the delay of 4365
days.
2. In the affidavit seeking for condonation of delay, it
has been stated as follows:
"3. I state that, I am the defendant in OS
No.11/2006. The respondents have filed the
suit for partition and separate possession of SS
properties, claiming 1/4th share each. The
Trial court has partly decreed the suit; I have
filed appeal before the 1 st appellate court and
the 1st Appellate court has dismissed the
appeal.
4. I state that, the appeal wad dismissed
on 02.04.2008. The Respondents have filed
FDP No.13/2008 & it was allowed on
19.11.2016. I further state that the 1st
Plaintiff has sold the family properties, for the
marriage expenses of the Plaintiff No.2 to 4.
5. I state that since the valuable properties
were sold, only small extent of land were
available for me. I further state that I am
suffering from severe financial problems and
my financial condition has become pathetic. In
view of the financial difficulties, I am not able
to file appeal, within the stipulated time by
engaging the service of an advocate.
6. I state that, since the Plaintiffs have
taken all source of family income, I am facing
difficulties to lead day today livelihood. The
FDP filed by the plaintiffs has also been
allowed. The plaintiff have not allowed me to
cultivate the land also. Under the
circumstances, with great difficulty, by raising
loan, I came to Bengaluru on 21.12.2021 and
engaged the service of an advocate and
handover the case papers to my advocate.
Hence there is a delay in filing the appeals."
3. As could be seen from the averments in the affidavit,
it is not the case of the appellant that he was unaware of
the dismissal of the appeal. The only contention advanced
was that the appellant had financial problems.m
4. In my view, this ground cannot be considered for
condoning the enormous delay of 4365 days in filing the
appeal.
5. I find no reason to accept the cause shown for
condonation of delay and hence, I.A.No.1/2021 is
dismissed. Accordingly, the appeal is also dismissed.
6. In view of dismissal of the appeal, the other pending
applications also dismissed.
Sd/-
JUDGE
GH
