Shri.Basavant vs Shri.Gangappa
2022 Latest Caselaw 788 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 18TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        REGULAR SECOND APPEAL NO.100578/2016 (PAR)
BETWEEN
SHRI. BASAVANT CHANNAPPA KUMBAR,
AGE: 64 YEARS, OCC: PENSIONER,
R/O: KUMBAR GALLI, KAKATI-591113,
TALUKA DIST: BELAGAVI.
                                                   ...APPELLANT

(BY SRI. M. R. SHINDE, SRI. ANAND ASHTEKAR,
SRI. AKSHAY KATTI AND
SRI. ABHISHEK PATIL, ADVOCATES)

AND
SHRI.GANGAPPA CHANNAPPA KUMBAR,
AGE: 60 YEARS, OCC: PRIVATE SERVICE,
R/O: KUMBAR GALLI, KAKATI-591113,
TALUKA DIST: BELAGAVI.
                                                 ...RESPONDENT

(BY SRI. P. G. NAIK AND SRI. G. B. NAIK, ADVOCATES)

      THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER XLII
RULE 1 OF CPC     PRAYING TO SET ASIDE THE ORDER DATED
08.06.2016   PASSED   BY   II   ADDITIONAL    DISTRICT   JUDGE,
BELAGAVI ON I.A.NO.I IN R.A.NO.143/2014 AND CONSEQUENTIAL
DISMISSAL OF APPEAL BEING BARRED BY LIMITATION AND etc.,


      THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                             2




                       JUDGMENT

This captioned regular second appeal is filed by the

unsuccessful defendant questioning the final decree

drawn by the Trial Court in FDP No.31/2008 and also the

judgment and decree passed by the First Appellate Court

in R.A.No.143/2014.

2. The respondent-plaintiff filed a suit for

partition and separate possession in O.S.No.230/2004

before the Principal Senior Civil Judge, Belagavi seeking

his legitimate half share in the suit schedule property.

The said suit, on contest, came to be decreed by passing

preliminary decree in O.S.No.230/2004 vide judgment

and decree dated 04.01.2008. The FDP Court having

secured commissioner report and also having examined

the feasibility, has accepted the commissioner report and

proceeded to draw a final decree. Feeling aggrieved by

the final decree drawn by the Trial Court, the present

appellant preferred an appeal in R.A.No.143/2014. This

appeal was preferred after lapse of two years 11 months.

3. The appellant-defendant let in evidence on

miscellaneous application. The Appellate Court having

examined the explanation offered by the appellant-

defendant was of the view that the appellant-defendant

was closely watching the proceedings and therefore, the

reasons assigned in the affidavit filed in miscellaneous

application were found to be not bonafide and therefore,

the Appellate Court was of the view that the delay is not

properly explained. Having meticulously examined the

evidence on record, the Appellate Court has also come to

the conclusion that the appellant-defendant is guilty of

indulging in delayed tactics and succeeded in protracting

the hearing. On these set of reasons, the Appellate Court

came to conclusion that this is not a fit case to adopt

liberal approach for condoning the delay. The Appellate

Court has proceeded to dismiss the miscellaneous

application and consequently, appeal also came to be

dismissed.

4. Heard the learned counsel appearing for

appellant and the learned counsel appearing for

respondent.

5. Perused the material on record. While arguing

this matter, learned counsel appearing for respondent-

plaintiff would submit to this court that the appellant-

defendant has succeeded in protracting the hearing. She

would submit to this Court that though her client had filed

a suit for partition in the year 2004, the present appellant

has virtually succeeded in stalling the proceedings.

Though the present captioned second appeal arises out of

final decree proceedings, she would submit to this Court

that similar attempt was also made by the appellant-

defendant in questioning the preliminary decree in

regular appeal bearing R.A.No.403/2010. The said

appeal when listed for hearing was dismissed for non-

prosecution. A miscellaneous application was filed in Misc.

No.138/2014 and on enquiry, the Court rejected the

application and refused to re-admit regular appeal in

R.A.No.403/2010. Against this order, the appellant-

defendant has filed MFA No.102127/2016 and same is

pending. She would also bring to the notice of this Court

that this Court has granted stay in the said Miscellaneous

First Appeal, wherein the preliminary decree passed by

the Court in O.S.No.230/2004 is stayed.

6. If these significant details are taken into

consideration, then the reasons assigned by the appellate

Court is based on record. The conduct of the appellant

has to be deprecated in strong words. On perusal of the

materials, this Court would find that he has not filed any

objections to the commissioner report. The FDP Court

having examined equities and also feasibility has

accepted the commissioner report. The appeal was filed

with a delay of 2 years 11 months. If he had any serious

objection in regard to feasibility of partition reported by

the commissioner, then the appellant-defendant was

required to file his objections. Without filing objections,

this Court is unable to understand as to how he can

maintain a regular appeal before the lower appellate

court. The FDP Court while deciding the claim of

respondent-plaintiff and present appellant has also taken

note of the fact that the present appellant-defendant has

not contested original suit in O.S.No.230/2004. The FDP

court has taken note of the fact that the appellant did not

appear. The FDP court also recorded a finding that even

appellant has not contested final decree proceedings by

filing objections to the FDP. There is a categorical finding

recorded by the FDP court that defendant has refused to

sign on the hand-sketch map though he was present at

the time when Taluka Surveyor was measuring the

property. If the FDP court has accepted the commissioner

report and final decree is drawn, I do not find any gross

injustice caused to appellant herein. On the contrary, the

appellant by protracting the matter has benefited and he

has succeeded in keeping this litigation pending for

almost 17 years.

7. The Hon'ble Apex Court in the case of M.

Ratnavarma Padival v. Mrs. M. Sharada R Hegde

and others reported in 2016 (1) AKR 113 has held

that the concept such as liberal approach, justice oriented

approach, substantial justice cannot be employed to

jettison substantial law of limitation. This clearly implies

that the suit or other proceeding instituted after the

prescribed period of limitation, must be dismissed.

8. No substantial question of law is involved in

this appeal. The appeal is devoid of merits and dismissed

accordingly.

9. Since the appeal itself is dismissed, question

of connecting this appeal along with MFA

No.102127/2018 does not survive for consideration. Both

the pending applications are rejected.

Sd/-

JUDGE YAN