Karnataka High Court
Nagappa S/O Bhimappa Maled vs Ramachandra S/O Bhimappa Maled on 24 March, 2022
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 24 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A.NO.100095/2021 (PARTN. & SEP.POS.)
BETWEEN:
NAGAPPA,
S/O BHIMAPPA MALED,
AGE: 67 YEARS,
OCC: AGRICULT URE AND RETIRED,
R/O SANGANAKERI,
TQ: GOKAK,
DIST: BELAGAVI.
... APPELLANT
(BY SRI SHRIHARSH A.NEELOPANT , ADVOCATE)
AND
1. RAMACHANDRA,
S/O BHIMAPPA MALED,
AGE: 63 YEARS,
OCC: AGRICULT URE,
R/O SANGANAKERI,
TQ: GOKAK,
DIST: BELAGAVI.
2. HANAMANT,
S/O KALLAPPA MALED,
AGE: 50 YEARS,
OCC AGRI CULT URE,
R/O MALADINNI CROSS,
GOKAK-591307, TQ: GOKAK,
DIST: BELAGAVI,
PRESENTLY R/AT ADITYA NAGAR,
KURUBARDADDI ,
NEAR AROHI PAN SHOP,
GOKAK-591307.
2
3. VIDYA W/O ASHOK MALED,
AGE: 39 YEARS,
OCC: HOUSEHOLD,
R/O MALADINNI CROSS,
GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI.
4. NEETA D/O ASHOK MALED,
AGE: 20 YEARS,
OCC: STUDENT ,
R/O MALADINNI CROSS,
GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI.
5. ADITYA S/O ASHOK MALED,
AGE: 17 YEARS,
OCC: HOUSEHOLD,
R/O MALADINNI CROSS,
GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI,
(SINCE MINOR R/BY HIS
GUARDIAN NATURAL MOTHER
RESPONDENT NO.1).
6. BHAGAWANT,
S/O KALLAPPA MALED,
AGE: 45 YEARS,
OCC: HOUSEHOLD,
R/O SANGANAKERI-591224,
TQ: GOKAK, DIST: BELAGAVI.
7. BHIMAPPA S/O KALLAPPA MALED,
AGE: 43 YEARS,
OCC: AGRICULT URE,
R/O SANGANAKERI-591224,
TQ: GOKAK, DIST: BELAGAVI.
8. MUTTEVVA W/O LAXMAN HANJI,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O JAGANUR, T Q: CHIKODI ,
DIST: BELAGAVI.
9. HANAMANT S/O BHIMAPPA MALED,
AGE: 61 YEARS,
OCC: AGRICULT URE,
3
R/O POLICE HEAD QUARTERS (DR),
VEERABHADRESHWAR NAGAR, BELAGAVI,
PRESENTLY R/AT RAMATEERTH NAGAR,
PLOT NO.2956,
NEAR KEB BUS ST OP,
BELAGAVI-590001.
10. SHANTAVVA W/O VITTAL MALED,
AGE: 55 YEARS, OCC HOUSEHOLD,
R/O SANGANAKERI-591224,
TQ: GOKAK, DIST: BELAGAVI.
11. RAGHAVENDRA S/O VITTAL MALED,
AGE: 29 YEARS,
OCC: AGRICULT URE,
R/O SANGANAKERI-591224,
TQ: GOKAK, DIST: BELAGAVI.
12. RAJU S/O VITTAL MALED,
AGE: 27 YEARS,
OCC: AGRICULT URE,
R/O SANGANAKERI-591224,
TQ: GOKAK, DIST: BELAGAVI.
13. AKASH S/O VITTAL MALED,
AGE: 24 YEARS,
OCC: AGRICULT URE,
R/O SANGANAKERI-591224,
TQ: GOKAK, DIST: BELAGAVI.
... RESPONDENTS
(BY SRI A.S.PATIL, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND
DECREE DATED 12.02.2021 PASSED IN R.A.NO.658/2019 ON
THE FILE OF THE XII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BELAGAVI SITTING AT GOKAK, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD
10.01.2019 PASSED IN O.S. NO.371/2017 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSI ON.
THIS APPEAL COM ING ON FOR ADMI SSION THIS DAY,
THE COURT , DELIVERED THE FOLLOWING:
4
JUDGMENT
Challenging order dated 12.02.2021 passed by
XII Addl.District and Sessions Judge, Belagavi sitting
at Gokak in R.A.No.658/2019, this appeal is filed.
2. Sri Shriharsh A.Neelopant, learned counsel
for appellant submits that appellant was defendant
no.6 in trial Court and appellant before first appellate
Court. There was delay of 311 days in filing appeal
and I.A.No.I filed seeking for its condonation. In
support of affidavit, it was stated that appellant was
suffering from ill-health and was unable to contact
counsel and only after receiving notice of final decree
proceedings, he approached counsel, obtained
certified copies and filed appeal. It was submitted
that the Hon'ble Supreme Court in the case of
Ummer V/s Pottengal Subida and others reported
in (2018) SCCR 391 and in the case of Bhivchandra
Shankar More V/s Balu Gangaram More and
others reported in (2019) SCCR 858 held that the
Courts should not dismiss appeal on the ground of
delay when civil rights of parties are involved and it
is not length of delay, but reasonable cause that
matters. In the instant case, appellate Court
dismissed application on the ground that appellant's
son was a practicing advocate and reason stated was
not bona fide.
3. On the other hand, Sri A.S.Patil, learned
counsel for respondents supported impugned order
and opposed appeal. It was submitted that the fact
that appellant's son was a practicing advocate was
not contraverted by appellant and therefore appellate
Court on appreciation of same and not finding just
cause rightly dismissed application.
4. Heard learned counsel for appellant and
respondents. Perused impugned order.
5. On perusal of impugned order, it is seen
that appellant had pleaded ill-health. In support of
application, appellant had also produced certificate
issued by hospital. Appellate Court disbelieved said
certificate even when respondents had not disputed
same. Opposition of respondents to application was
on the ground that appellant's son was a practicing
advocate. Whether son of appellant was aware of
proceedings and whether appellant had constructive
notice of impugned judgment and decree is not
stated.
6. Under the circumstances, passing of order
rejecting application would not be sustainable. It is
settled law that when it comes to substantive justice
procedure should yield. Delay in conclusion of
proceedings would cause hardship to respondents.
But same can be set-right by awarding appropriate
costs. Hence, I pass following:
ORDER
Appeal is allowed. Impugned order is
set aside. I.A.No.I filed under Section 5 of
Limitation Act in R.A. no.658/2015 is
allowed on cost of Rs.15,000/- payable to
respondents on the first date of
appearance. R.A. no.658/2019 is restored
to file.
As parties are represented before this
Court, they are directed to appear before
appellate Court on 18.04.2022 without
awaiting fresh notice, and obtain further
orders from the Court.
First Appellate Court shall dispose of
appeal as early as possible within a period
of six months, in accordance with law.
Sd/-
JUDGE
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