Abdulfafar S/O Modinsaheb ... vs Abdhul Hamid S/O Sahebuddin ...
2022 Latest Caselaw 5248 Kant

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 23RD DAY OF MARCH 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

            R. S. A. NO.7141 OF 2008 (INJ)

BETWEEN:
Abdulgafar S/o Modinsaheb Bagawan,
Aged about 45 years, Occ: Business,
R/of Muddebihal, Taluk: Muddebihal,
District: Bijapur.
                                               ... Appellant
(By Sri. G.G.Chagashetti, Advocate)

AND:

1.     Abdul Hamid S/o Sahebudin Bagawan,
       Aged about 31 years, Occ: Nil,
       R/of Metaji Galli, R/of Muddebihal,
       Taluk: Muddebihal, District: Bijapur.

2.     The Executive Officer,
       Taluk Panchayath,
       Muddebihal, Taluk: Muddebihal,
       District: Bijapur.

                                           ... Respondents

(Notice to R1 & R2 are served)
                              2




      This RSA is filed U/s 100 of Civil Procedure Code
praying to allow this Regular Second Appeal and set aside
the order dated 04.09.2008 passed by the Civil Judge
(Sr.Dn.) Muddebihal in URA No.9/2007 and the judgment
and decree dated 11.09.2007 passed by the I Addl. Civil
Judge (Jr.Dn.) Muddebihal in O.S.No.100/2004.

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

                       JUDGMENT

This appeal is filed challenging the judgment and

decree dated 04.06.2008 rejecting on IA.No.1 passed

in U.R.A.No.9/2007 by the Civil Judge (Sr.Dn.)

Muddebihal, & consequently dismissed the appeal vide

judgment and decree dated 11.09.2007.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

The plaintiff filed a suit for perpetual injunction

restraining the defendant No.1 from interfering into

peaceful possession and enjoyment of suit property. It

is the case of the plaintiff that, plaintiff is a permanent

resident of Muddebihal having egg selling business in

the suit property. The defendant No.1 being close

relative of the plaintiff had applied for allotment of suit

property in the year 1999, and the suit property is

sanctioned in the name of defendant No.1 by the

defendant No.2 in the year 1999 for carrying business

of defendant No.1 with fixed deposit of Rs.5,000/- on

monthly basis. As the defendant No.1 has incurred

heavy loss in his business, he transferred the said suit

shop in favour of plaintiff on 17.02.2004 by executing

the consent deed and also possession of the suit

property. The defendant No.1 with oblique motive

now interfering in the peaceful possession and

enjoyment of the suit property. Hence, the cause of

action arose to the plaintiff to file a suit for perpetual

injunction.

3.1. The defendants appeared through their

counsel but did not file written statement. Hence, the

written statement is taken as not filed.

3.2. Plaintiff in order to prove his case,

examined himself as PW-1 and got marked the

documents as Ex.P1 to Ex.P3.

3.3. The Trial Court, on the basis of pleadings of

plaintiff, framed the following points for consideration:

1. Whether the plaintiff proves that, he is in possession and enjoyment of suit property and defendant No1 is interfering his peaceful possession and enjoyment of the suit property?

2. Whether the plaintiff is entitled for the relief claimed?

3. What order or decree?

The Trial Court, dismissed the suit vide judgment

and decree dated 11.09.2007.

3.4. The plaintiff aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

U.R.A.No.9/2007 along with application for

condonation of delay of 2 months 24 days in filing the

appeal. In support of his application filed an affidavit

stating that the plaintiff is doing egg selling business

in Muddebhihal and adjacent town and therefore, he

could not able to contact his counsel. Thus, there was

a delay in filing the appeal and prayed to condone the

delay in filing the appeal.

3.5. The defendants have not filed any objection

to the said application I.A.No.1. The First Appellate

Court framed the following points for consideration:

1. Whether I.A.No.1 filed u/s 5 of Limitation Act for condoning the delay in filing this appeal is liable to be allowed?

2. What order?

3.6. The First Appellate Court, after

re-appreciation of the evidence on record, rejected the

application and consequently dismissed the apepal

vide judgment and decree dated 04.09.2008. Hence,

the plaintiff filed the instant appeal.

3.7. This appeal is admitted on the following

substantial questions of law:

Whether the Appellate Court was justified in rejecting the application for condonation of delay on the ground that the sufficient cause is not shown?

4. Heard learned counsel for the plaintiff.

5. Learned counsel for the plaintiff submits

that, the plaintiff is doing egg selling business in

Muddebihal and adjacent town and he could not able

to contact his counsel and there is a delay in filing the

appeal. He further submits that the plaintiff as shown

sufficient cause in filing the appeal. He submits that

the Appellate Court has committed an error in

rejecting the application. Hence, on these grounds,

he prays to allow the appeal.

6. Perused the records and considered the

submissions made by learned counsel for the plaintiff.

7. It is the case of the plaintiff that, plaintiff

filed a suit for perpetual injunction against the

defendant No.1, and the Trial Court dismissed the suit

vide judgment and decree dated 11.09.2007. The

plaintiff contended that plaintiff is doing egg selling

business in Muddebihal and adjacent towns and he

could not able to approach his counsel. The said fact is

not been disputed by the defendants. The Appellate

Court, ought to have consider the reasons assigned in

the affidavit by the plaintiff. On the contrary,

Appellate Court rejected the application solely on the

ground that, the plaintiff has not produced any

records to show that he was doing egg selling

business. The Appellate Court has committed an error

in rejecting the application filed by the plaintiff. The

Hon'ble Apex Court held that Court must consider

application for condonation of delay liberally must not

be rejected on technical grounds. In view of the above

discussion, substantial question of law is answered

infavour of the plaintiff.

8. In view of the above discussion, I proceed

to pass the following:

ORDER

i. The appeal is allowed.

ii. The judgment and decree passed by Appellate Court is set aside.

iii. Application I.A.No.1 filed by the plaintiff is allowed, delay of 2 months 26 days is condoned.

iv. Appeal is remitted to the Appellate Court and directed to assign the number to the appeal and hear the appeal on merits and pass appropriate orders.

v. Further, as the appeal is of the year 2007, Appellate Court is directed to dispose of the appeal as expeditiously as possible.

SD/-

JUDGE

GRD