Shri.Shivappa S/O Goudappa Patil vs Tengevva Alias Geeta W/O ...
2022 Latest Caselaw 220 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 6TH DAY OF JANUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

     REGULAR SECOND APPEAL No.100227/2021 (PAR & SP)

BETWEEN:

1.     SHRI.SHIVAPPA S/O GOUDAPPA PATIL
       AGE: 63 YEARS, OCC: AGRICULTURE,
       R/O. ALAKHANUR, TQ. RAIBAG,
       DIST. BELAGAVI, PIN CODE 591220.

2.     SMT.SAVAKKA W/O SHIVAPPA PATIL
       AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
       R/O. ALAKHANUR, TQ. RAIBAG,
       DIST. BELAGAVI, PIN CODE 591220.

3.     SHRI.MALLAPPA S/O SHIVAPPA PATIL
       AGE: 34 YEARS, OCC: SERVICE,
       R/O. ALAKHANUR, TQ. RAIBAG,
       DIST. BELAGAVI, PIN CODE 591220.

4.     SHRI.BHARATESH S/O SHIVAPPA PATIL
       AGE: 32 YEARS, OCC: AGRICULTURE,
       R/O ALAKHANUR, TQ RAIBAG,
       DIST. BELAGAVI, PIN CODE 591220.
                                             ...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

AND:

1.     TENGEVVA @ GEETA
       W/O BHIMAGOUDA PATED
       AGE: 55 YEARS, OCC: AGRICULTURE AND H.H. WORK,
       R/O. ALAKHANUR, TQ. RAIBAG,
       DIST. BELAGAVI, PIN CODE 591220.
                               2




2.   SHRI.PEERAGOUDA, S/O. BASAGOUDA PATED
     AGE: 48 YEARS, OCC: AGRICULTURE,
     R/O. BASARAGI, TQ JATT,
     DIST. SANGLI, MAHARASHTRA STATE,
     PIN CODE 416404.
                                       ...RESPONDENTS

(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R2;
     R1 - NOTICE DISPENSED WITH)
                           ---

     THIS REGULAR SECOND APPEAL IS FILED U/SEC.100 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.04.2017
PASSED IN R.A.NO.3/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DTD 09.12.2016 PASSED IN O.S. NO.547/2012 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, RAIBAG, DISMISSING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.

     THIS  APPEAL  COMING   ON   FOR   HEARING  ON
INTERLOCUTORY APPLICATION THIS DAY, THE COURT MADE
THE FOLLOWING:

                           ORDER

Heard the learned counsel for the appellants as

well as the learned counsel for the respondents on

I.A.1/2021, which has been filed by the appellants to

condone the inordinate delay of 1272 days in filing

this Regular Second Appeal.

     2.   The    present      appeal    is    filed   by   the

defendants   1   to   4   challenging   the   judgment     and





decree dated         27.04.2017 passed by the Court of

Senior      Civil     Judge        and        JMFC,   Raibag,          in

R.A.No.3/2017, wherein the learned first Appellate

Court had set aside the judgment and decree dated

09.12.2016 passed in O.S.No.547/2012 by the Court

of Principal Civil Judge and JMFC, Raibag and decreed

the suit of Plaintiff No.2.

3. The application I.A.1/2021 filed for

condoning delay of 1272 days is supported with the

affidavit of the first appellant. In the affidavit it is

stated that, as against the judgment and decree

passed in O.S.No.547/2012, whereunder the suit was

dismissed, the plaintiff No.2 had filed a Regular

Appeal and in the said appeal, the appellants herein

were served with notice and they had entered

appearance and engaged the services of an advocate.

The Regular Appeal filed by the plaintiff No.2 was

allowed by the first Appellate Court on 27.04.2017.

In the affidavit filed in support of the application to

condone the delay, it is further stated that the

disposal of the Regular Appeal was not within the

knowledge of the deponent and he came to know

about the same only during the month of November-

December 2018. In spite of the appellants herein

coming to know about the disposal of the Regular

Appeal during the month of November- December

2018, they did not choose to file any appeal

challenging the said order. The present appeal has

been filed by them only on 18.01.2021. Therefore, it

can be said that, even after coming to know of the

order passed by the first Appellate Court allowing the

Regular Appeal and decreeing the suit, the appellants

did not choose to file an appeal before this Court for

more than two years.

4. In the affidavit filed in support of the

application to condone the delay, it has been stated

that the registered sale deed dated 11.06.2012,

under which the Plaintiff No.1 claims right over the

land which is the subject matter of the said sale deed

is a bogus document. It is the contention of the

appellants herein that, such a document was not at

all executed by any one of them. However it is

further stated in the affidavit that, even after

disposal of the Regular Appeal, they had negotiated

with the Plaintiff No.2 for settlement of the matter

and therefore they had not chosen to file the appeal.

If it is the case of the appellants that the sale deed

executed in favour of plaintiff No.2 is a bogus

document, it cannot be appreciated that they were

making an attempt to settle the matter with a

person, who allegedly has created a bogus document

in his favour. The plaintiff No.2 had come on record

in the suit in the year 2014 and at that juncture itself

it was revealed by him that he claims right and title

over 2 acres 02 guntas of land in the land bearing

survey No.177/3 of Alakanur Village, Raibag Taluk in

Belagavi District, under a registered sale deed dated

11.06.2012 said to have been executed by appellant

No.1 herein.

5. It is the specific case of the appellant No.1

herein that the entire suit schedule properties are his

self-acquired properties and he has filed a written

statement to the said affect before the trial Court.

Even though in the year 2004 itself it was revealed

that the plaintiff No.2 has been claiming right and

title in respect of the portion of the suit schedule

property under the registered sale deed dated

11.06.2012, said to have been executed by the

appellant No.1 herein, no action has been taken

either by appellant No.1 or by any others on his

behalf, to question the said sale deed at any point of

time. It is also not the case of the appellants that

they have initiated any criminal action against

plaintiff No.2 for having created or forged a

document in his favour in respect of the property

which belongs to appellant No.1.

6. The first appellant has also stated in his

affidavit that, subsequently the plaintiff No.2 had

filed final decree proceedings before the trial Court in

the year 2019 and he was served with the notice in

the said proceedings in the month of September,

2019. Even thereafterwards, appellants did not

choose to file any appeal before this court. On the

other hand, the appellant No.1 has filed a suit in

O.S.No.260/2020, challenging the validity of the sale

deed dated 11.06.2012, allegedly executed by him in

favour of plaintiff No.2. Admittedly the said suit is

pending consideration before the jurisdictional civil

Court.

7. From the over all appreciation of the

averments made in the affidavit filed in support of

the application filed for condoning the delay, it is

seen that the appellants admittedly had a notice of

disposal of the Regular Appeal in the month of

November-December 2018. Subsequently, admittedly

a final decree proceedings was initiated in the year

2019 and even in the said proceedings, notice was

served on the appellants in the month of September

2019. No action has been taken by the appellants to

challenge the decree even thereafterwards. Even

after service of notice in the final decree

proceedings, the appellants have taken nearly 15

months to file the present appeal before this Court

and no satisfactory explanation whatsoever has been

offered in this regard.

8. The explanation offered by the appellants

to condone the delay is not at all satisfactory. The

contention of the appellants that attempts were made

to settle the dispute prima facie appears to be false,

having regard to the contention now raised by them

that the alleged sale deed, under which plaintiff No.2

claims right and title over a portion of the suit

schedule property is a bogus document. As observed

earlier, no prudent man would indefinitely negotiate

with a person, who has created a document

fraudulently in his favour.

9. Learned counsel for the appellants in

support of his argument addressed, to take a lenient

view for condoning the delay, has relied upon the

judgment of the Hon'ble Supreme Court in the case of

Collector, Land Acquisition, Anantnag and

Another Vs. Mst.Katiji and Others reported in

(1987) 2 SCC 107. In the said case, delay of four

days caused in filing the appeal was not condoned by

the High Court and the Hon'ble Supreme Court while

setting aside the order passed by the High Court

refusing to condone the delay has stated that the

High Court had erred in dismissing the appeal on

hyper technical ground of bar of limitation. It is also

observed that the same treatment has to be given to

the State in considering the application filed for

condoning the delay and there cannot be any

discrimination. It is also observed in the said

judgment that the Court should adopt justice oriented

approach. I am in respectful agreement with the

principle laid down by the Hon'ble Supreme Court in

the said case. However, judgment in the said case

would not be applicable to the facts of the present

case.

10. The Hon'ble Supreme Court in the case of

State Financial Corporation and Another V.

Jagadamba Oil Mills and Another, reported in AIR

2002 SC 834, has stated that the judgment should

be relied upon as precedent only if it is applicable to

the fact situation of the case. I am of the considered

view that the judgment relied upon by the learned

counsel for the appellants would not be applicable to

the fact situation of the present case and therefore it

will not aid the case of the appellants.

11. The inordinate delay of 1272 days in filing

the appeal has not been satisfactorily explained by

the appellants and from the perusal of the averments

made in the affidavit filed in support of the

application, it is very clear that, in spite of the

appellants having notice of the disposal of the

Regular Appeal, and also of filing the final decree

proceedings, they were not diligent enough to file an

appeal before this Court challenging the said

judgment and decree. Though the appellants have

contended that they have got a good case on merits,

having regard to the fact that no satisfactory

explanation has been offered to condone the

inordinate delay in filing the appeal, I am of the

considered view that the merits of the case cannot be

appreciated at this stage.

12. Under the circumstances, I am of the

considered view that the application filed by the

appellants to condone the inordinate delay of 1272

days is liable to be dismissed. Accordingly, the

following:

ORDER

I.A.1/2021 is dismissed.

Consequently, Regular Second Appeal is also dismissed.

In view of disposal of the Regular Second Appeal, I.A.2/2021 and I.A.3/2021 will not survive for consideration.

Sd/-

JUDGE gab