Karnataka High Court
Kempugowda @ Ramakrishnegowda vs Jayalakshmamma on 23 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.1363/2020 (PAR)
BETWEEN:
KEMPUGOWDA @ RAMAKRISHNEGOWDA
S/O LAKSHMAMMA
AGED ABOUT 61 YEARS
R/O LAKSHMIPURA VILLAGE
KASABA HOBLI
K.R.PET TALUK
MANDYA DISTRICT-571401
...APPELLANT
(BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
1. JAYALAKSHMAMMA
W/O JAVAREGOWDA
K.R.PET TALUK
MANDYA DISTRICT-571401
2. BHAGYAMMA
W/O SHIVANNA
R/O MADDUR POLICE QUARTERS
MADDRU TOWN AND TALUK
MANDYA DISTRICT-571401
...RESPONDENTS
(BY SRI. B.S. SACHIN, ADVOCATE FOR RESPONDENT NO.1
SRI PRAMOD R., ADVOCATE FOR RESPONDENT NO.2)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE
DATED 14.06.2017 PASSED IN R.A.No.5024/2014 ON THE FILE OF
2
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA
(SITTING AT SRIRANGAPATTANA), DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 03.06.2011 PASSED
IN O.S.No.37/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR.DVN.) AND JMFC., SRIRANGAPATNA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The plaintiff is in second appeal.
2. The plaintiff had instituted a suit seeking for partition of
claiming half share in the suit properties. The said suit was
dismissed on 03.06.2011.
3. Nearly three years thereafter i.e., on 03.05.2014, an
appeal came to be filed by the appellant. Along with the
appeal, an application seeking for condonation of the delay of
three years was filed.
4. It was stated in the said application that the appellant
was suffering from jaundice and that he had also suffered a
paralytic stroke and was taking treatment under one Smt.
Nanjamma, who was stated to be an exponent of country
medicine. The appellant produced a certificate issued by the
said Smt.Nanjamma. In the said certificate, it had been
stated that the appellant had suffered hip prank and also
jaundice and that the appellant had visited her on 01.06.2011
and had taken treatment for 10 to 12 months.
5. The Appellate Court, on consideration of the said
affidavit, came to the conclusion that the certificate produced
by the appellant was not credible. The Appellate Court noticed
that the certificate issued by Smt. Nanjamma vide Ex.P1, did
not bear the seal or the register number of the said medical
practitioner and could not therefore, be accepted as a valid
certificate. The Appellate Court concluded that the said
document was suspicious and it would not be safe to rely
upon such a document as a cause for condonation of delay.
The Appellate Court, accordingly, dismissed the application
for condonation of delay and consequently, the second
appeal.
6. Learned counsel for the appellant, Sri Pavana Chandra
Shetty H., with all the vehemence at his command, argued
that the judgment of the Appellate Court could not be
sustained. His first argument was that the delay of 926 days
in filing this appeal had been condoned by this Court and that
by itself indicated that this Court had considered the merits of
the suit and indicated its mind to interfere with the impugned
order and remand the matter. He therefore submitted that
having regard to the fact that the delay was condoned by this
Court in filing the second appeal, the judgment of the
Appellate Court was required to be set aside.
7. He also relied upon the following citations to contend
that the appellant had made out a case for condonation of
delay:
Sl.No. Citation
1 Special Tehsildar, Land Acquisition,
Kerala vs. K.V.Ayisumma
[AIR 1996 SC 2750]
2 State of Karnataka vs. Y.Moideen Kunhi
(dead) by LRs and Ors.
[AIR 2009 SC 2577]
3 Commissioner, Nagar
Parishad, Bhilwara vs. Labour Court,
Bhilwara and another
[(2009) 3 SCC 525]
4 G.P.Srivastava vs. R.K.Raizada and others
[(2000) 3 SCC 54]
5 Improvement Trust, Ludhiana vs. Ujagar
Singh and others
[(2010) 6 SCC 786]
6 Waheed Patel, since deceased by his LRs.
vs. The Chief Engineer, Gulbarga and
others
[ILR 2017 KAR 3368]
7 Collector, Land Acquisition, Anantnag and
another vs. Mst.Katiji and others
[(1987) 2 SCC 107]
8 Lala Bal Mukand (Dead) by LRs. vs
Lajwanti and others
[AIR 1975 SC 1089]
8. The ratio laid down in the said decisions relating to the
manner in which the powers available under Section 5 of the
Limitation Act are fairly well settled and there can be no
quarrel with the law laid down therein.
9. As stated above, the suit was dismissed in the year
2011 and the appeal was filed only in the year 2014 with a
delay of three years. In order to explain the delay, the
appellant had stated that he had suffered from jaundice and
also a paralytic stroke. He, however, did not produce any
documentary evidence of a registered medical practitioner
stating that he was bed ridden and could not move about.
10. On the other hand, he stated that he was suffering from
jaundice and had secured treatment from Smt. Nanjamma,
an exponent of country medicine, which itself indicates that it
was not a debilitating disease. The assertion that he had
suffered a paralytic stroke was not established by the
production of any credible evidence of a registered medical
practitioner. The Appellate Court has taken note of the fact
that Smt. Nanjamma was not a medical practitioner and the
certificate issued by her was not credible so as to entertain
the reason given for condoning the delay. Ultimately, the
Appellate Court has chosen not to exercise the discretion
vested in it in condoning the delay.
11. In my view, the refusal of the Appellate Court to
exercise a discretion vested in it would not constitute a
question of law, much less a substantial question of law. I
find no reason to entertain this second appeal and the same
is accordingly dismissed.
In view of dismissal of the appeal, the pending
applications, if any, do not survive for consideration.
Sd/-
JUDGE
sma
