Smt. Savitri vs Smt. Shantabai
2022 Latest Caselaw 5371 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 24TH DAY OF MARCH 2022

                         PRESENT

     THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                           AND

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

            R.F.A.NO.100169/2020 (PAR/POS)

BETWEEN:

1.     SMT. SAVITRI W/O SURESH SHINDHE,
       AGED ABOUT 39 YEARS,
       OCC: AGRICULTURE AND HOUSEHOLD,
       R/AT MUDHOL, DIST: BAGALKOTE.

2.     KUMAR MANJUNATH S/O SURESH SHINDHE
       AGED ABOUT 20 YEARS, OCC: STUDENT.

3.     KUMARI SUSHMITA D/O SURESH SHINDHE
       AGED ABOUT 17 ½ YEARS, OCC: STUDENT.

4.     KUMARI PREMA D/O SURESH SHINDHE,
       AGED ABOUT 17 YEARS, OCC: STUDENT.

5.     KUMARI HEMA D/O SURESH SHINDHE,
       AGED ABOUT 16 YEARS, OCC: STUDENT.

       APPELLANTS 3 TO 5 ARE MINORS
       REPRESENTED BY THEIR NATURAL
       GUARDIAN AND MOTHER SMT.SAVITRI
       W/O SURESH SHINDHE,

       ALL R/AT MUDHOL,
       DIST: BAGALKOTE-587313
                                              ... APPELLANTS
(BY SRI MRUTYUNJAY TATA BANGI, ADV.)
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AND:

1.     SMT.SHANTABAI W/O. PRALHAD SHINDHE,
       AGED ABOUT 54 YEARS, OCC: AGRICULTURE.

2.     SMT.ANNAPURNA W/O. CHETAN MANE,
       AGED ABOUT 26 YEARS,
       OCC: HOUSEHOLD.

3.     SRI. KRISHNA
       CLAIMING AS S/O PRALHAD SHINDHE,
       AGED ABOUT 24 YEARS,
       OCC: AGRICULTURE.

4.     KUMAR GOPAL
       CLAIMING AS S/O PRALHAD SHINDHE,
       AGED ABOUT 19 YEARS, OCC: STUDENT.

       ALL R/AT NEAR RANNA CIRCLE,
       MUDHOL, DIST: BAGALKOTE-587313.

5.     SMT.SHAKUNTALA W/O PRALHAD SHINDHE,
       AGED ABOUT 57 YEARS, OCC: HOUSEHOLD,
       R/AT SHIVAJI CIRCLE, MUDHOL,
       DIST: BAGALKOTE-587313

6.     SMT. MANJULA
       W/O ANANAD SHINDHE @ SHEGADE,
       AGED ABOUT 40 YEARS, OCC: HOUSEHOLD,
       R/AT HARGAPURHSAD, TQ: HUKKERI,
       DIST: BELAGAVI.
                                           ... RESPONDENTS

(BY SRI S.B.HEBBALLI FOR R.1 TO R.4
NOTICE TO RESPONDENT NOS.5 & 6 : SERVED)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT
TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.04.2017
PASSED IN O.S.NO.85/2014 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, MUDHOL, AND DISMISS THE SUIT
BY ALLOWING THE PRESENT APPEAL WITH COSTS THROUGHOUT
IN THE INTEREST OF JUSTICE AND EQUITY.

      THIS APPEAL COMING ON FOR HEARING ON I.A. THIS DAY,
H.T.NARENDRA PRASAD, J DELIVERED THE FOLLOWING:
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                         JUDGMENT

challenging the judgment and decree dated 01.04.2017

passed by the Court of Principal Senior Civil Judge &

JMFC, Mudhol in O.S.No.85/2014, whereby the suit filed

by the plaintiffs for partition and separate possession has

been decreed.

2. In the suit, the summons has been served to

the defendants-appellants. They have been represented

through their counsel and filed their written statement

and contested the matter. The suit came to be disposed

of on 01.04.2017. After lapse of 983 days the appeal has

been filed. Along with the appeal, application in

I.A.No.1/2020 has been filed for condonation of delay in

filing the appeal.

3. We have perused the affidavit filed in support

of the application. We find no proper explanation to

condone the delay of more than two and half years. The

explanation given by the appellants at paragraph No.7 of

the affidavit is as follows:

"It is submitted that after disposal of the suit, our counsel informed to me regarding disposal of the suit and after going through the judgment and decree of the trial court, our counsel directed us to prefer an appeal before this Hon'ble Court. However, due to poverty I could not arrange for the fees and expenses for filing the appeal. I submit that my children are young and school going. All the money that was arranged from time to time was spent for the education expenses of the school and education. In these span of days, the plaintiffs also sought for drawing upon of final decree and all my savings was spent for the expenses of the proceedings and with days passed by the saving for fees and expenses also the consideration amount was spent in the schooling and hence could not file the appeal before this Hon'ble Court and hence there is delay in preferring the appeal, which is neither deliberate nor intentional but because of the bona-fide reasons stated above and if the delay caused in preferring the appeal is not condoned great hardship would be caused to us and on the contrary no hardship would be caused to the respondents and hence it is just

and equitable to condone the delay caused in preferring the appeal."

4. By going through the affidavit, it is very clear

that long delay of two and half years is not properly

explained by the appellants. Therefore, we are of the

opinion that the application in I.A.No.1/2020 filed for

condonation of delay of 983 days in filing the appeal has

to be rejected and accordingly rejected. Consequently,

the appeal is also dismissed on the ground of delay.

5. In view of dismissal of the appeal,

I.A.No.2/2020 does not survive for consideration.

Sd/-

JUDGE

Sd/-

JUDGE EM