Smt. Mehabobbi W/O Salim Shaikh vs Mehaboobsab S/O Imsailsab Mulla
2022 Latest Caselaw 8333 Kant

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                                       RSA No. 100193 of 2021




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 08th DAY OF JUNE, 2022

                          BEFORE
         THE HON'BLE MR JUSTICE E.S.INDIRESH
 REGULAR SECOND APPEAL NO. 100193 OF 2021 (PAR-)

BETWEEN:

1.   SMT. MEHABOOBI W/O SALIM SHAIKH
     AGE 46 YEARS, OCC HOUSEHOLD,
     R/AT KRISHNA NAGAR,
     DESHPANDE NAGAR,
     HUBBALLI,
     PIN CODE 580009.

2.   MISS RESHMA D/O ISMAILSAB MULLA
     AGE 38 YEARS, OCC HOUSEHOLD WORK,
     R/AT KRISHNA NAGAR,
     DESHPANDE NAGAR,
     HUBBALLI,
     DIST DHARWAD,
     PIN CODE 580009.

3.   MISS. SEEMA D/O ISMAILSAB MULLA
     AGE 36 YEARS, OCC: PRIVATE JOB,
     R/AT KRISHNA NAGAR,
     DESHPANDE NAGAR,
     HUBBALLI,
     DIST DHARWAD,
     PIN CODE 580009.



                                                 ...APPELLANTS
(BY SRI. DINESH M KULKARNI, ADVOCATE)
AND:

     MEHABOOBSAB S/O. IMSAILSAB MULLA
     AGE 42 YEARS, OCC PRIVATE SERVICE,
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                                             RSA No. 100193 of 2021


      R/O NEAR KRISHNA NAGAR,
      DESHPANDE NAGAR, HUBBALLI,
      DIST DHARWAD,
      PIN CODE 580009.


                                                           ...RESPONDENT
(NOTICE TO RESPONDENT SERVED - UNREPRESENTED)

     THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 19.09.2020 PASSED IN
R.A.NO.287/2017 BY THE V ADDITIONAL DISTRICT JUDGE,
DHARWAD, SITTING AT HUBBALLI, IN COMFIRMING THE JUDGMENT
AND DECREE DTD 06.01.2015 PASSED IN FDP NO.21/2013 BY THE
COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HUBBALLI, AS NULL AND VOID.
WITHIN THE PERIOD OF LIMITATION.
     THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:


                                JUDGMENT

This appeal is preferred by the appellants,

challenging the order dated 19.09.2020 in

R.A.No.287/2017, on the file of the V Addl. District and

Sessions Judge, Dharwad, sitting at Hubballi, confirming

the Judgment and Decree dated 06.01.2015 on the file of

the Principal Senior Civil Judge & JMFC Court, Hubballi,

decreeing the proceedings.

2. The relevant facts for adjudication of this appeal

are that, the respondent No.1 herein has filed

RSA No. 100193 of 2021

O.S.No.257/2011 on the file of the Principal Senior Civil

Judge and JMFC Court, Hubballi, against the defendants

therein, seeking the relief of partition and separate

possession in respect of the suit schedule property. The

said suit came to be decreed by the trial Court, holding

that the plaintiff is entitled for 2/5th share in the suit

schedule properties and defendant Nos.1 to 3 are entitled

for 1/5th share each in the suit schedule properties.

Thereafter, the plaintiff has filed FDP No.21/2013 on the

file of the Principal Senior Civil Judge and JMFC Court,

Hubballi, and the said proceedings was resisted by the

defendants. The said Final Decree Proceedings came to be

disposed of on 06.01.2015, wherein, the trial Court has

ordered that the petitioner therein is entitled for final

decree in respect of his 2/5th share with demarcation in

the petition suit schedule property along with 1/5th share

each of the respondent Nos.1 to 3 and accordingly, the

Commissioner's Report was accepted. Feeling aggrieved by

the Judgment and Decree, in FDP No.21/2013, the

RSA No. 100193 of 2021

defendants have preferred R.A.No.287/2017 on the file of

the First Appellate Court and there was a delay of 1006

days in filing the appeal, and accordingly the defendants

have filed an application under Section 5 of the Limitation

Act. The said application was resisted by the plaintiff. The

First Appellate Court after considering the material on

record, by order dated 19.09.2020, dismissed the

application filed by the appellant herein under Section 5 of

the Limitation Act, consequently the Judgment and Decree

in FDP No.21/2013 dated 06.01.2015 was confirmed.

Feeling aggrieved by the same, the defendants have

preferred this Regular Second Appeal.

3. Heard Sri. Dinesh M. Kulkarni, learned counsel

for the appellants and the respondent though served,

remained un-represented.

4. Sri. Dinesh M. Kulkarni, learned counsel

appearing for the appellants argued that, the reasons

assigned by the First Appellate Court, while dismissing the

application cannot be considered for the reason that the

RSA No. 100193 of 2021

inequitable share has been given to the defendants based

on the Commissioner's Report. He further contended that,

the reasons assigned by the First Appellate Court declined

to accept the reasons assigned by the appellants herein

with regard to delay is incorrect, which requires

interference in this appeal.

5. In the light of the arguments advanced by the

learned counsel for the appellants, I have carefully

examined the reasons assigned by the First Appellate

Court, while dismissing the application filed under Section

5 of the Limitation Act. It is forthcoming from the

impugned order passed by the First Appellate Court that

the FDP No.21/2013 was disposed of on 06.01.2015 and

R.A.No.227/2017 was filed after a delay of 2 years 9

months and in this regard, the finding recorded by the

First Appellate Court that the defendants were well aware

of the disposal of the FDP proceedings, however, not taken

steps to secure the certified copy of the same at the

earliest and to file the appeal in time. It is also

RSA No. 100193 of 2021

forthcoming from the finding recorded by the First

Appellate Court that since the defendants were aware

about the conclusion of the proceedings in FDP

No.21/2013, there was "no due diligence" on the part of

the defendants who slept over the matter for inordinate

delay of more than two years. The said finding recorded by

the First Appellate Court is just and proper in view of the

law declared by the Apex Court in the case of State Of

Nagaland Vs. Lipok Ao & Ors reported in (2005) 3 SCC

752, wherein, it is held that, in order to condone the

delay, the court has to look into the cause of delay and not

the length of delay and also if, the cause is shown to meet

the ingredients of Section 5 of Limitation Act and same

has to be accepted. In the instant case, as the defendants

were aware of the Final Decree Proceedings, however,

have not chosen to file the appeal at the earliest and

therefore, the finding recorded by the First Appellate

Court, rejecting the application filed by the defendants

seeking condonation of delay is rightly dismissed by the

RSA No. 100193 of 2021

First Appellate Court. Accordingly, I do not find any

material illegality in the order passed by the First Appellate

Court. Resultantly, the appeal fails.

Sd/-

JUDGE

SVH