Karnataka High Court
Smt S Godhi Bai vs Sri B Basava Rao on 13 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 1586 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1586 OF 2007 (PAR)
BETWEEN:
1. SMT S GODHI BAI,
DEAD BY HER LRS
1(a) SRI SRINIVAS R.K,
S/O LATE GODHI BAI,
AGED ABOUT 51 YEARS
1(b) SRI NANDA KUMAR,
S/O LATE GODHI BAI,
AGED ABOUT 44 YEARS,
APPELLANTS NO.1(a) AND 1(b) ARE
R/AT NO.8/23, K.P.KUPPASWAMY LAYOUT,
10TH CROSS, NAGAVARA,
Digitally
signed by R H K B K COLLEGE, A.C.POST,
MANJUNATHA
Location: BANGALORE-560 045.
HIGH COURT
OF
KARNATAKA
2. SRI B.RAMA RAO,
DEAD BY HIS LRS
2(a) SMT. HEERA BAI,
W/O LATE B.RAMA RAO,
AGED ABOUT 64 YEARS,
2(b) SRI R.KRISHNOJI RAO,
S/O LATE B.RAMA RAO,
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RFA No. 1586 of 2007
AGED ABOUT 38 YEARS,
2(c) SRI R.SURESH RAO,
S/O LATE B.RAMA RAO,
AGED ABOUT 36 YEARS,
2(d) SRI R.PRABU RAO,
S/O LATE B.RAMA RAO,
AGED ABOUT 30 YEARS,
2(e) SRI R. MOHAN RAO,
S/O LATE B.RAMA RAO,
AGED ABOUT 29 YEARS,
2(f) SMT.BHAVANI RAO,
D/O LATE B.RAMA RAO,
AGED ABOUT 26 YEARS,
APPELLANTS NO.2(a) AND 2(f) ARE R/AT NO.234,
NEW NO.188, 3RD CROSS, JAYANTHI NAGAR,
HORAMAVU POST, BANGALORE-560 043.
3. SRI B LAKSHMANA RAO,
S/O.LATE K.BHOGI RAO,
AGEED ABOUT 59 YEARS,
R/AT NO.133, JAYANTHI NAGAR,
HORAMAVU POST, BANGALORE-560 043.
4. SRI B BHEEMA RAO,
S/O LATE K.BHOGI RAO,
AGED ABOUT 51 YEARS,
R/AT NO.46, 3RD MAIN ROAD CROSS,
LINGAYYANAPALYA,
HALASURU, BANGALORE-560 008
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RFA No. 1586 of 2007
...APPELLANTS
(BY SRI.NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI B BASAVA RAO,
S/O LATE K.BHOGE RAO,
AGEED ABOUT 55 YEARS,
R/AT NO.182, 3RD CROSS,
JAYANTHI NAGAR, HORAMAVU VILLAGE,
HORAMAVU POST,
BANGALORE-560 043.
2. SRI B. VIJENDRA RAO,
S/O LATE K.BHOGI RAO,
AGEED ABOUT 53 YEARS,
R/AT NO.110, HORAMAVU POST,
BANGALORE-560 143.
3. SRI B PRABHAKAR RAO,
SINCE HE DECEASED BY HIS LR,
SMT.LEELA BAI,
W/O LATE B.PRABHAKAR RAO,
AGED ABOUT 56 YEARS,
R/AT NO.3476,
6TH CROSS, I MAIN,
GAYATHRI NAGAR, BANGALORE-560 043.
4. SMT B KASTURI BAI,
D/O LATE K.BHOGI RAO,
AGED ABOUT 47 YEARS,
R/AT NO.182, 3RD CROSS,
JAYANTHI NAGAR, HORAMAVU POST,
BANGALORE-560 043.
5. SRI B NAGOJI,
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RFA No. 1586 of 2007
DEAD BY HIS LRS
5(a) SMT. SUSHILA BAI,
W/O LATE B.NAGOJI,
AGED ABOUT 66 YEARS,
5(b) SMT. N.JAYANTHI BAI,
D/O LATE B.NAGOJI,
AGED ABOUT 44 YEARS,
BOTH ARE R/AT NO.4,
NANDAVANAM 'B' STREET,
JOGUPALYA MAIN ROAD,
HALASURU, BANGALORE-560 008.
5(c) SRI PRATHAP CHANDAR RAO KAMBLEY,
S/O LATE B.NAGOJI,
AGED ABOUT 41 YEARS,
NO.4, NANDAVANAM 'B' STREET,
HALASURU, BANGALORE-560 008.
5(d) SMT. LALITHA BAI,
D/O LATE NAGOJI,
AGED ABOUT 36 YEARS,
R/AT NO.12 (OLD NO.9) 2ND FLOOR,
'G' 4TH STREET, JOGUPALYA, HALASURU,
BANGALORE-560 008.
...RESPONDENTS
(BY SRI.M.G.RAMAKRISHNAIAH FOR R3.,
SRI.ROHITH GOWDA FOR R5 (A,B AND D.,
NOTICE TO R1, R2 AND R4
SERVED BUT UNREPRESENTED.,
VIDE ORDER DATED 07.08.2012,
NOTICE IN RESPECT OF R5(c) HELD SUFFICIENT.,
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RFA No. 1586 of 2007
VIDE ORDER DATED 21.11.2023
APPEAL AGAINST R6 DISMISSED.,)
THIS RFA IS FILED U/O XLI RULE 1 R/W SEC.96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED:05.03.2005
PASSED IN OS.NO.2208/1988 ON THE FILE OF THE I
ADDL.CITY CIVIL AND SESIONS JUDGE, BANGALORE,
CCH.NO.2, DISMISSING THE SUIT FOR PARTITION &
SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
There is no representation on behalf of the
respondents.
2. Heard Sri Nagaraja Hegde, learned counsel for the
appellants on I.A.No.1/2007.
3. The said application-I.A.No.1/2007 is filed under
Section 5 of the Limitation Act with the following prayer;
"For the reasons sworn to in the
accompanying affidavit the
applicants/appellants pray that this Hon'ble
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Court be pleased condone the delay of 763
days in filing the above appeal and consider
the same on merits, in the ends of justice and
equity."
4. The application-I.A.No.1/2007 is supported by the
affidavit of Sri B.Bheema Rao. In paragraph No.2 of the
affidavit, it has been stated as under;
"I submit that we had filed the suit against
the respondents in OS No.2208/88 on the file
of the court below for the relief of partition
and separate possession of our respective
1/10th share with metes and bounds and the
said suit came to be dismissed by the court
below on 5.3.2005. But we were not informed
about he disposal of the suit and we could not
contact our advocate during the said period
due to the reasons beyond our control. I was
away from Bangalore and I was staying at
Mumbai in connection with my employment
and my sisiter-in-law Susheela Bai ie., the
wife of the 1st appellant had undergone
medical treatment for kidney problems in
St.Philomina Hospital, Bangalore. After she
had recovered my elder brother B.Nagoji Rao
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ie., the 1st appellant himself had undergone
medical treatment for considerable long time.
The other appellants were taking care of him
in the hospital and we had undergone
financial constraints and we could not
approach our Advocate. Only at the belated
stage we approached our Advocate who had
suggested us to file an appeal before this
Hon'ble Court. But we could not file the
appeal due to our poor financial position and
also due to the ill health of our elder brother
and his wife. Hence the delay is caused in
filing the above appeal."
5. The application is supported by a photo copies of
the medical certificate issued by the St.Philomena
Hospital, Bengaluru.
6. On careful consideration of the contentions urged
in the affidavit, it is seen that deponent was staying in
Bombay and could not know the result of the suit.
7. Insofar, as the other appellants are concerned, the
wife of one of appellant No.1 was taking treatment at
St.Philomena Hospital, Bengaluru. Other appellants said to
have taken care of the wife of appellant No.1, who was
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admitted in the Hospital between the period of 11.10.2005
to 24.10.2005.
8. The decree came to be passed on 05.03.2005
whereby the suit of the plaintiff came to be dismissed.
What happened in the period between 05.03.2005 to
11.10.2005 and what are the difficulties faced by the
appellants to prefer the appeal in time is not even stated
in the affidavit.
9. Further, non intimation of the result of the suit by
the advocate as contended by the appellants cannot be
countenanced in law as there is no affidavit filed by the
advocate who represented the plaintiff in the Court below.
Under such circumstances, huge delay of 763 days cannot
be condoned as reasons assigned in the affidavit are
vague and bald.
10. Further, this Court has also bestowed its
attention to the merits of the matter.
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11. There was a Will executed by Sri K.Bhogi Rao
which has been the subject matter of the suit and the
same has been considered by the learned Trial Judge and
has held that the Will is properly established before the
Court and thereby, no property was available for the
plaintiff to seek for partition. As such, there is no merit in
the appeal as well.
12. Taking note of these aspects of the matter, I
proceed to pass the following:
ORDER
i. I.A.No.1/2017 is rejected.
ii. Consequently, the appeal is also
dismissed.
Sd/-
JUDGE
CH
