Sri Sadashiva vs Smt Sangamma
2022 Latest Caselaw 3457 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 2ND DAY OF MARCH, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                RSA No.89/2008 (PAR)

Between:

Sri. Sadashiva
S/o Shivayogi Talavar,
Aged about 47 years,
Occ: Contractor,
Shahabad Taluk, Gulbarga Dist.
                                          ... Appellant

(By Sri I.R.Biradar &
 Sri G.G.Chagashetti, Advocates)

And:

1.     Smt. Sangamma W/o Kashiram,
       Aged about 64 years,
       Residing at Shahabad,
       Chittapur Taluk,
       Gulbarga District.

2.     Smt. Gangamma W/o Haradappa,
       Aged about 48 years,
       Residing at Shahabad,
       Chittapur Taluk,
       Gulbarga District.
                                       ... Respondents
(By Sri R.S. Sidhapurkar, Advocate)
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      This Regular Second Appeal is filed under Section
100 of the Civil Procedure Code, praying to call for records
and set aside the impugned orders passed by Civil Judge
(Senior Division) at Sedam in R.A.No.68/2004, dated
08.01.2007; Set aside the ex-parte judgment and decree
passed by Civil Judge (Jr.Dn.,) at Shahabad in
O.S.No.95/1998 dated 31.08.1998 and dismiss the suit of
respondent with costs and etc.

      This appeal coming on for hearing, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed challenging the judgment and

decree dated 08.01.2007 passed in R.A.No.68/2004

by the Civil Judge (Senior Division), Sedam.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the legal representative of deceased

defendant and respondents are the legal

representatives of deceased plaintiff before the Trial

Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

4. One Kashiram filed suit for partition and

separate possession contending that defendant is the

younger brother of the plaintiff. Plaintiff is having two

more elder brothers by name Fakeerappa and

Ganganna. They expired about thirty years back. At

the time of death of plaintiff's father, family of the

plaintiff and defendant was a joint family. As all the

four brothers could not live jointly and enjoy the

family property, due to the difference among the

womenfolk, there was a family partition of all the

properties left by the father of the plaintiff among his

four sons. Family partition took place in the year

1969. Two portions were made. One portion was

fallen to the share of deceased brother Fakeerappa

and Ganganna and other portion was fallen to the

share of plaintiff and defendant. Out of 8 acres of

agricultural land, 4 acres have fallen to the share of

plaintiff and defendant. House Nos.1-222 (old), 1-223

(old) as shown in the plaint with blue and green ink

and House Nos.1-211 and 1-212 situated at Shahabad

have fallen to the share of Fakeerappa and Ganganna

and house Nos.1-224(old), 1-225(old) and 1-226(old)

situated at Shahabad shown in the map in red color

were fallen to the share of plaintiffs. After the

partition, the plaintiff and defendant jointly sold the

land fallen to their share and distributed the

consideration amount equally among themselves. The

defendant was a Municipal Councilor and he is

influential person, he got entered his name in the

municipal records in respect of house No1-226. Even

though there was no partition in between the plaintiff

and defendant, the plaintiff demanded for partition,

the defendant refused to effect partition. Hence, the

plaintiff filed the suit for partition and separate

possession. Though the defendant appeared did not

file written statement. Hence, the plaintiff was

examined himself as PW.1 and got marked the

documents Exs.P1 to P4. The trial Court after

recording the evidence and after considering the

material on record decreed the suit of the plaintiff

holding that the plaintiff is entitled for half share in

the suit property. The legal representatives of

defendant, aggrieved by the judgment and decree

passed by the trial Court preferred an appeal in

R.A.No.68/2004. During the pendency of appeal, the

defendants filed an application under Section 5 of the

Limitation Act alleging that the appeal was filed

beyond the property of limitation. The said application

was filed at the stage of arguments. The appellate

Court rejected the application filed under Section 5 of

Limitation Act, consequently dismissed the appeal.

The legal representatives of defendant aggrieved by

the judgment and decree passed by the appellate

Court filed this second appeal.

5. This Court admitted the appeal on the

following substantial question of law;

"Whether the Lower Appellate Court was justified in entertaining the appeal and at that stage of final arguments to dismiss the appeal, as the application seeking condonation of delay, in filing that the appeal, was not enable, as no ground was made out for condonation of delay?"

6. Heard the learned counsel for the appellant

and counsel for the respondent.

7. Learned counsel for the appellant submits

that the appellate Court has committed an error in

rejecting the application filed under Section 5 of

Limitation Act. The defendant has specifically

contended in the application that defendant due to old

age he was unable to go to Chittapur to meet his

advocate at Chittapur and thereafter he suffered from

Heart ailments. Further he is a diabetic patient and he

was advised to take bed rest and he was shifted to his

daughter's place at Athani and thereafter he came to

Sedam to stay with his son. In the month of October

1998, the appellant came to Shahabad and he

received the Court summons in FDP No.2/1998 in the

last week of October 1998 and came to know about

the disposal of the suit pending before the trial Court.

It is further contended that the appellant was not

aware of the transfer of the case to Shahabad Court

from Chittapur Court. Neither his advocate informed

the transfer of the case to Shahabad Court nor the

Shahabad Court had issued notice to the appellant.

The appellant could not able to appear for the said

reason. The absence of the appellant was intentional

but it is due to bonafide. Hence, he submitted that the

there was delay in filing the appeal. The said

application was opposed by the respondent by filing

objections. The appellate Court without considering

the sufficient cause shown by the appellant has

proceeded to pass the impugned judgment. The

Appellate Court has not assigned any reasons in

rejecting the application filed by the appellant.

However, the Hon'ble Apex Court in the case of

Collector, Land Acquisition, Anantnag and

another Vs. Mst.Katiji and others reported in AIR

1987 SC 1353, wherein it is held that the application

for condonation of delay is to be considered liberally

and cannot be rejected on technical ground. The

Appellate Court has rejected the application only on

the ground that it is filed at belated stage considering

the reasons assigned in the affidavit enclosed to an

application. The appellant has shown sufficient cause

in not preferring the appeal within time. Considering

from any angle of the case, the appellant has shown

sufficient cause in not preferring the appeal within

time. The reasons recorded by the appellate Court in

the impugned order is arbitrary and contrary to the

records. As observed above, the appellant has made

out sufficient cause for filing the appeal at belated

stage.

8. In view of the above discussions, the

substantial question of law is answered in favour of

the appellant. Accordingly the appeal is allowed. The

impugned judgment and decree passed by the

appellate Court in R.A.No.68/2004 is set aside.

Consequently, IA No.I is allowed, delay is condoned in

filing the appeal. The matter is remitted to the

appellate Court. The appellate Court shall restore the

appeal in its original number and dispose off the

appeal on merits and pass the judgment and decree in

accordance with law. As the appeal is of the year

2004, the appellate Court is directed to dispose of the

appeal as expeditiously as possible.

9. Parties are directed to appeal before the

appellate Court on 04.04.2022, without awaiting any

notice from the appellate Court.

Registry is directed to transmit the trial Court

records forthwith.

Sd/-

JUDGE

msr