Karnataka High Court
V Nagaraju vs Sri Srinivasegowda on 25 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N S SANJAY GOWDA
R.S.A. No.1116/2014
BETWEEN:
SRI V NAGARAJU
S/O LATE VENKATEGOWDA
AGED ABOUT 60 YEARS
R/AT BALAGHATTA VILLAGE
MELUKOTE HOBLI, PANDAVAPURA TQ.,
MANDYA DISTRICT - 571 431.
...APPELLANT
(BY SRI H M MURALIDHAR, ADVOCATE)
AND:
1. SRI SRINIVASEGOWDA
S/O LATE PATEL VENKATEGOWDA
AGED ABOUT 65 YEARS
R/AT BALAGHATTA VILLAGE
MELUKOTE HOBLI, PANDAVAPURA TQ.,
MANDYA DISTRICT - 571 431.
2. SRI V HANUMEGOWDA
S/O LATE PATEL VENKATEGOWDA
AGED ABOUT 58 YEARS
R/AT HOUSE No.520, MIG-2, HUDCO
1ST STAGE, HEBBAL, MYSORE - 571 401.
3. SRI SANJEEVEGOWDA
S/O LATE ANKEGOWDA
AGED ABOUT 82 YEARS.
2
4. SRI L PUTTARAJU
S/O LATE ANKEGOWDA
AGED ABOUT 79 YEARS.
5. SRI SRINIVASU
S/O LATE RAMEGOWDA
AGED ABOUT 61 YEARS.
6. SRI THYAGARAJU
S/O LATE RAMEGOWDA
AGED ABOUT 59 YEARS
THE RESPONDENTS No.3 TO 6 ARE
R/AT BALAGHATTA VILLAGE
MELUKOTE HOBLI, PANDAVAPURA TQ.,
MANDYA DISTRICT - 571 431.
... RESPONDENTS
(BY SRI J T GIRISHA, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE ATED 1.1.2009
PASSED IN R.A.No.49/2008 ON THE FILE OF THE
PRINCIPAL DISTRICT JUDGE, MANDYA, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DATED 13.6.2007 PASSED IN O.S.No.114/2003 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN)
SRIRANGAPATNA.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal arises out of a suit for
partition.
2. The appeal is preferred by the first defendant.
3. The suit for partition was partly decreed and
the plaintiff was declared to be entitled to 1/3 share in the
suit. In the suit, the first defendant was placed ex parte.
4. None of the other defendants preferred any
appeal. However, the first defendant preferred an appeal,
which was however, a belated appeal. The application for
condonation of delay of 76 days was rejected by the
Appellate Court on 01.01.2009.
5. After the appeal was dismissed on 01.01.2009,
this Regular Second Appeal has been preferred on
12.08.2014 i.e. after nearly 5 years 7 months. Along with
the appeal, the appellant had, initially, filed an affidavit
seeking for condonation of delay of 1953 days in filing the
appeal. In the affidavit, it was stated as follows:
"2. It is humbly submitted that myself is not
appeared personally before the trial court and
no notice is served on me in
O.S.No.114/2003 of court below. However,
on the receipt of notice in FDP No.19/2007
myself is coming to know about the earlier
proceedings before the Court below in
O.S.No.114/2003 and thereafter myself
applied for certified copy of the said
judgment and decree dated 03.03.2008 and
obtained the certified copy of the same on
13.03.2008 and thereafter preferred an
R.A.No.49/2008, but my application for
condonation of delay has been rejected
without providing sufficient and adequate
opportunity by contravention of the principles
of natural justice, inasmuchas I have good
and merited defence and respondent No.1 by
abusing the process of the court below
obtained the ex-parte judgement and decree,
which is unsustainable and erroneous and
presently he initiated FDP proceedings
against me and others and further after the
orders of the appellate I thought that the said
order is final and kept mum for some days
and when I met my previous counsel for
discussing in respect of FDP proceedings, at
that time he suggested me for appeal
provision and available remedy before this
Hon'ble Court and also told me for initiation
of further proceedings before this Hon'ble
Court, thereupon after mobilization of
necessary funds from friends and relatives
myself file this appeal. Hence, this
application."
6. Subsequently, a better affidavit dated
19.09.2021 was filed seeking to explain the delay, in
which, it has been stated as follows in respect of the delay
in filing the Regular Second Appeal:
"8. I submitted that, since I am innocent
and illiterate bonafide reasons contentions
my suit and appeal, hence I put in financially
difficulty, because of financial difficulties and
my ill health, I was unable to file the above
RSA in time. Therefore, the above said
circumstances the delay is caused in filing the
above appeal. "
7. As could be seen from both the affidavits, the
appellant does not dispute the fact that he was aware of
dismissal of the appeal on 01.01.2009. In fact, by the
second affidavit, he also admits that he has decided to file
the appeal in the year 2010 itself and had collected the
papers and through his friend, had decided to file a second
appeal.
8. He, however, states that thereafter he lost
contact with his friend who had come over to Bengaluru
and he was unable to find him.
9. In my view, this affidavit indicates that right
from the year 2010 till 2014, the appellant did not take
any steps so as to ensure the Regular Second Appeal was
preferred though he was aware about the dismissal of the
appeal and that he had to prefer a second appeal. The
reason given by him that he had lost contact with his
friend cannot be accepted as a cause which is sufficient to
condone the inordinate delay of 1953 days i.e., more than
5 years.
10. I find no reasons to condone the delay of 1953
days in filing the appeal. Consequently, the application
filed for condonation of delay is rejected.
11. Consequently, the Regular Second Appeal shall
stands dismissed.
12. Since the appeal has been dismissed on the
ground of rejection of delay, there would be no need to
bring legal representatives of deceased respondent No.2
on record.
Sd/-
JUDGE
SSD
