Karnataka High Court
Rajaram vs Hindurao Kallappa Gosarwadi on 7 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MSA NO.655 OF 2013
BETWEEN
RAJARAM S/O KALLAPPA GOSARWADI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: INGALI, TQ: CHIKODI,
DIST: BELGAUM.
...APPELLANT
(BY SRI. SHREEVATSA S HEGDE, ADVOCATE)
AND
1. HINDURAO KALLAPPA GOSARWADI
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: INGALI, TQ: CHIKODI,
DIST: BELGAUM.
2. BABURAO KALLAPPA GOSARWADI
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: INAGALI, TQ: CHIKODI,
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. SANGRAM S KULKARNI, ADVOCATE FOR R1;
R2 - NOTICE SERVED)
THIS APPEAL IS FILED UNDER XLIII RULE 1(T) READ WITH
SECTION 104 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 10.07.2013 PASSED IN M.A.NO.32/2011 ON THE FILE OF
THE SENIOR CIVIL JUDGE, CHIKODI, DISMISSING THE PETITION
FILED UNDER ORDER 9 RULE 4 READ WITH SECTION 151 OF CPC.
2
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This captioned appeal is filed by the appellant-
plaintiff challenging the order passed on an application
filed seeking re-admission of appeal, which was dismissed
for non-prosecution, is rejected on the ground that no
satisfactory explanation is offered to condone the delay
and restore the appeal on original file.
2. Heard the learned counsel for the appellant
and learned counsel appearing for respondents. Perused
the order under challenge.
3. Admittedly, the appellant herein filed a suit
seeking recovery of possession and also for mesne
profits. The said suit was contested by respondents-
defendants. The court having appreciated the oral and
documentary evidence has proceeded to dismiss the suit.
Feeling aggrieved by the judgment and decree of the Trial
Court, the present appellant preferred an appeal, which
came to be dismissed for non-prosecution on 21.03.2009.
The appellant herein appears to have filed an application
for restoration of appeal after lapse of 2 years 8 months.
In order to substantiate his case and to offer explanation
for having caused delay in seeking readmission of appeal,
he let in ocular evidence. However, the Appellate Court
was of the view that the explanation offered by the
appellant herein is not satisfactory and has proceeded to
reject the said application. It is this order, which is under
challenge.
4. Heard the learned counsel for the appellant
and the learned counsel appearing for the respondent.
The appeal filed before the Appellate Court was dismissed
for non-prosecution on the ground that the counsel and
the appellant both did not appear before the Court on the
date fixed for hearing. In appeal, the presence of the
litigants is not pre-requisite on every hearing. Ultimately
it is the counsel on record, who has to address his
arguments. The judgment and decree of the Trial Court
which is under challenge is to be tested before the
Appellate Court. It is a trite law that the Appellate Court
which is hearing the appeal filed under section 96 of
C.P.C., is a final fact finding authority. The appellant
herein is seeking relief of possession of the suit property
on the ground that he is the absolute owner of the suit
property. The Trial Court has dismissed the suit after a
full fledged trial. It is a trite law that the appeal is a
continuation of suit and the Appellate Court is required to
independently assess the oral and documentary evidence.
Though this Court would find some laxness on the part of
the appellant's counsel in not prosecuting the appeal,
however the appellant being a litigant cannot be held to
be responsible for dismissal of the appeal and it is the
counsel, who is on record must to be diligent in
prosecuting the matter. The appellant cannot be saddled
with negligence and cannot be punished, which would
ultimately lead to permanent loss of property rights.
Therefore, in this background, this Court is of the view
that the Appellate Court has taken recourse with too
much hyper-technical approach while examining
miscellaneous application filed by the appellant herein.
Even if there is some negligence on the part of the
appellant herein in prosecuting the appeal, the Court
could have compensated the respondent-defendant by
imposing reasonable costs on the appellant herein and
ought to have allowed the application. Counsel for
respondent/defendant has contended that appellant has
failed to take note of dismissal order for a considerable
period and thus remained oblivious of the fate of the
appeal. There is no denying of the said aspect. But court
should be liberal in interpreting the explanation for
delayed filing of application for restoration and no
technical view can be taken regarding explanation of each
and every day delay. This exercise is not done by the
Appellate Court and therefore, I am of the view that this
has led to miscarriage of justice. In this background, I am
of the view that the order under challenge is not at all
sustainable and the same is liable to be set aside.
Accordingly, I proceed to pass the following:
ORDER
The appeal is allowed.
The order dated 10.07.2013 passed by
the Senior Civil Judge, Chikkodi in Misc.Appeal
No.32/2011 is hereby set aside by allowing
the application and the appeal is restored to
its original file subject to appellant paying
costs of Rs.10,000/- to the respondent-
defendant on the next date of hearing.
The appellant is entitled to prosecute
with the appeal only on payment of costs
imposed by this Court to the respondent.
In the event the order of this Court is
complied by depositing the costs, the
Appellate Court is directed to hear the matter
on merits after notifying both the parties the
next date of hearing and shall expeditiously
dispose of the appeal.
Having regard to the fact that the appeal
is of the year 2006 and since both the parties
are represented by their counsel, they shall
appear before the Lower Appellate Court on
24.01.2022.
In view of disposal of the appeal,
pending interlocutory applications, if any, do
not survive for consideration and are
dismissed accordingly.
Sd/-
JUDGE
YAN
