Karnataka High Court
Shekhargouda S/O Basanagouda ... vs Girija W/O Ningappa Channapur on 18 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:9136
MFA No. 102117 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 102117 OF 2017 (CPC)
BETWEEN:
SHEKHARGOUDA
S/O BASANAGOUDA KHANDAPPALAVAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: GANGAPUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANT
(BY SRI. N.P.VIVEKMEHTA, ADVOCATE)
AND:
1. GIRIJA W/O NINGAPPA CHANNAPUR
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANGAPUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. NEELAVVA W/O VEDAMURTHY NINAJJEAR
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
Digitally
signed by
GIRIJA A
R/O: CHANNALLI, TQ: HIREKERUR,
BYAHATTI
GIRIJA A
BYAHATTI Date: DIST: HAVERI-581111.
2023.08.22
15:14:58 -
0700
3. VEDAMURTHY S/O FAKKIRAPPA NIGAJJAR
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: -DO-
...RESPONDENTS
(BY MISS. VINAYA KUPPELUR FOR SRI. N.R.KUPPELUR,
ADVOCATE FOR R2 AND R3)
THIS MFA IS FILED U/O.43 RULE 1(T) OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE ORDER DATED 27.04.2017,
PASSED IN CIVIL MISC.NO.23/2014, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT RANEBENNUR,
REJECTING THE PETITION FILED U/O. 41 RULE 17(1) R/W.
SECTION 151 OF CPC.
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NC: 2023:KHC-D:9136
MFA No. 102117 of 2017
THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed against the order passed in Civil
Misc.No.23/2014 on the file of the Senior Civil Judge,
Ranebennur. In terms of the impugned order dated
27.04.2017, the petition under Order XLI Rule 17(1)
of the Code of Civil Procedure, filed to restore
R.A.No.56/2010, by recalling the order dated
04.01.2012, dismissing the aforementioned R.A. is
rejected.
2. Learned appearing for the appellant would submit
that, the present appellant was the appellant in
R.A.No.56/2010, on the file of the Senior Civil Judge,
Ranebennur. He would further submit that, he was
defendant No.4 in O.S.No.16/2008, on the file of the
Civil Judge, Rabebennur. The said suit was for
partition and separate possession. Defendant No.4
also claimed share in the said suit.
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MFA No. 102117 of 2017
3. The relationship of the parties is not in dispute. The
suit in O.S.No.16/2008 is filed by the plaintiff, who is
the daughter of 1st and 6th defendant in the said suit.
Defendants No.2 and 4 are the siblings of the plaintiff
and defendant No.3 is the husband of defendant No.2.
4. Though the suit was dismissed, the plaintiff did not file
any appeal. The appeal is filed by the defendant
No.4, who also claimed share in the said suit. When
the appeal was posted for final arguments on
04.01.2012, there was no representation on behalf of
the appellant. Hence the appeal was dismissed for
non-prosecution. An application under Order XLI Rule
19 of the Code of Civil Procedure, is filed to recall the
order dated 04.01.2012, passed in R.A.No.56/2010,
referred to above. There was delay in filing the
application to recall the order dismissing the appeal
for non-prosecution. Delay of 669 days was prayed to
be condoned by filing an application to condone the
delay.
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MFA No. 102117 of 2017
5. The application for condonation of delay was resisted
by the respondent in the said appeal. Evidence was
recorded on the application for condonation of delay.
After analysing the evidence on record, the First
Appellate Court dismissed the application for
condonation of delay as well as application for
recalling the order dismissing the appeal.
6. Sri. N. P. Vivekmehta, learned counsel for the
appellant would submit that, after filing of the suit,
the father as well as the mother of the defendant No.4
died and after her death, again there is cause of
action for defendant No.4 to claim partition. This
being the position, one more suit by the present
appellant for partition and separate possession is
certainly maintainable and this fact has not been
considered by the First Appellate Court and
erroneously dismissed the application for condonation
of delay as well as the main petition to restore the
appeal. He would further submit that the First
Appellate Court taking into consideration the above
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MFA No. 102117 of 2017
said legal position that the appellant can again file a
suit for partition adopting the liberal approach, should
have restored the appeal and should have heard the
appeal on merits.
7. Learned counsel for the respondents Ms. Vinaya
Kuppelur, submits that the application to restore the
appeal was filed after 669 days and even number of
days were not properly mentioned in the application.
The proper reasons are not assigned in the application
for condonation of delay and in the cross-examination
of the appellant, the respondents have led evidence to
substantiate that there is willful negligence and
default on the part of the appellant in not proceeding
with the appeal and not filing the application for
restoration of the appeal.
8. This Court has considered the contentions raised at
the bar.
9. There is no dispute relating to the relationship of the
parties. Defendant No.4 in a suit for partition filed by
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MFA No. 102117 of 2017
sister has also claimed share in the properties, which
is permissible under the law. Since the suit for
partition filed by the plaintiff was dismissed,
defendant No.4 has filed Regular Appeal, which is also
permissible. However, the appeal was dismissed for
non-prosecution and it was not decided on merits. It
is also forthcoming from the records that appellant's
parents died and succession once again opened after
the death of the appellant's parents.
10. This being the position, one more suit for partition is
maintainable and the First Appellate Court lost sight of
this aspect of the matter. By referring to the evidence
led by the parties, the first Appellate Court finds that
no reasons are made out to condone the delay in filing
the application to recall the order and consequently
dismissed the application for condonation of delay and
also dismissed the application for restoration of the
appeal.
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MFA No. 102117 of 2017
11. Though the order technically appears to be correct,
considering the fact that the right to file a suit for
partition by the present appellant is not taken away,
this Court is of the view that technicality should be
ignored and in the interest of justice, the appellant
should be permitted to prosecute the appeal on
merits.
12. Hence the following:
ORDER
i. The appeal is allowed.
ii. The impugned order dated 27.04.2017
passed by the Senior Civil Judge,
Ranebennur, in Civil Misc.No.23/2014, is set
aside.
iii. Delay in filing the application for restoration
of the appeal in R.A.No.56/2010 on the file
of the Senior Civil Judge, Ranebennur, is
condoned.
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iv. Consequently, the order dated 04.01.2012,
dismissing the appeal for non-prosecution is
also recalled and R.A.No.56/2010 is restored
to the file.
v. Parties shall appear before the First
Appellate Court on 15.09.2023 without
awaiting any further notice from the Court.
vi. The parties shall also cooperate in the early
disposal of the appeal, as the appeal is of
the year 2010.
vii. This Court has not expressed anything on
the merits of the matter. Appeal shall be
decided without being influenced by any of
the observations made in this order.
viii. Observations made in this order are only
confined for the restoration of the appeal.
Sd/-
JUDGE
gab
