Karnataka High Court
Shri Sidram S/O Nirvaneppa Kuri vs Smt. Mallavva W/O Nirvaneppa Kuri Dead ... on 18 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14825-DB
RFA No. 100514 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100514 OF 2023 (PAR/POS)
BETWEEN:
SHRI. SIDRAM S/O. NIRVANEPPA KURI
AGE: 50 YEARS, OCC: AGRICUTLURE,
R/O: ANKALGUDIKETAR,
TAL: HUKKERI, DIST: BELAGAVI-591309.
...APPELLANT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
SMT. MALLAVVA W/O. NIRVANEPPA KURI
DEAD SINCE BY LRs ALREADY ON RECORD.
1. SHRI. KALLAPPA S/O. NIRVANEPPA KURI
AGE: 53 YEARS,
OCC: AGRICUTLURE AND EX SERVICEMAN,
R/O: ANKALGUDIKETAR,
Digitally signed
TAL: HUKKERI, DIST: BELAGAVI-591309.
by SAROJA
HANGARAKI
Location: HIGH
SAROJA COURT OF
KARNATAKA
HANGARAKI DHARWAD
BENCH
Date:
2023.12.20
2. SMT. GANGAVVA W/O. BALAPPA SHINDIGERI
14:40:57 +0530
AGE: 58 YEARS,
OCC: HOUSEHOLD AND AGRICUTLURE,
R/O: SHIRGUPPI, TQ: CHIKODI,
DIST: BELAGAVI-591237.
3. SMT. NINGAWWA W/O. SHANKAR NAIK
AGE: 57 YEARS,
OCC: HOUSEHOLD AND AGRICUTLURE,
R/O: IRALATTI, TQ: GOKAK,
DIST: BELAGAVI-591307.
SMT. KALLAWWA W/O. MALLAPPA MELLIKERI
SINCE DIED ON 03.05.2019 BY LR
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NC: 2023:KHC-D:14825-DB
RFA No. 100514 of 2023
4. SHIVALEELA W/O. NAIKAPPA HADALAGI
AGE: 27 YEARS,
OCC: HOUSEHOLD AND AGRICUTLURE,
R/O: HALAKI, TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
5. SHRI. PAWADI SHIVABASAPPA MANTUR
AGE: 43 YEARS, OCC: AGRICUTLURE,
R/O: MALLAPUR P.G., TQ: GOKAK,
DIST: BELAGAVI-591101.
...RESPONDENTS
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE
DATED 03.06.2019 PASSED IN O.S.NO.25/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE HUKKERI, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
H.P. SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard on I.A.No.1/2023 seeking condonation of
delay of 813 days in filing the above appeal.
2. Learned counsel for the appellant would submit
that an application was filed before the trial Court invoking
Order IX Rule 7 of CPC and the same was not considered
by the trial Court and proceeded to pass an exparte
judgment and decree against the appellant. He would
further submit unconditional apology for not appearing
before the trial Court and not contesting the matter and
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seek leave of this Court to provide an opportunity to
appear, file written statement and cross-examine PW.1
and lead evidence to prove defence regarding
maintainability of the suit and more particularly that the
Item No.1 is self-acquired, purchased the Item No.1 out of
his self-earning and he was driver of Bitumen Tanker since
1999 to May 2005 and the same was purchased for
valuable consideration of Rs.34,000/- from Shetteppa
Kuri.
3. He would also submit that in the affidavit it is
stated that he is only male member of the family and
engaged in agricultural and driving work and his counsel
was representing before the trial Court and he had told
that his presence is not required on each date of hearing,
as such, he could not meet and visit his counsel appearing
before the trial Court. It is also sworn to the affidavit that
the learned counsel appearing before the trial Court has
addressed a letter to him and the same is received by his
family members and his family members did not inform
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about the said letter to him and counsel representing him
before the trial Court has tried to call him on his mobile
but he has lost his mobile and as such it was not possible
for the counsel to contact him.
4. It is also contended that only after the Court
Commissioner notice in FDP No.10/2019 proceedings was
served on him, he came to know about the judgment and
decree and hence there is delay due to unavoidable
circumstances and the same may be condoned.
5. Counsel for the appellant would also contend
that opportunity was not given to him and the application
was kept in abeyance and when the exparte judgment is
passed, it is appropriate to condone the delay of 813 days
in filing the appeal.
6. Counsel would also brought to notice of the
Court the order sheet of the trial Court dated 04.12.2018.
Having perused the same, it discloses that the application
was filed under Order IX Rule 7 of CPC along with
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vakalathnama for this appellant and also the trial Court
passed an order keeping the application in abeyance till
filing of the written statement. However, even liberty was
given to proceed with the matter and adjourned the
matter to 02.01.2019. Thereafter, the counsel for the
appellant also not represented before the trial Court and
also not filed any written statement and witness was
examined on 08.04.2019 and there was no representation
for the defendant and hence taken as no cross.
7. Except filing the application under Order IX Rule
7 of CPC and in spite of application was deferred and kept
pending and opportunity was granted to file written
statement, the written statement has not been filed and
not made any efforts to even cross-examine the witness.
Ultimately, the suit was decreed on 03.06.2019. Even
though the suit was decreed on 03.06.2019, till 2023, the
same has not been challenged and only after four years,
the present appeal is filed.
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8. The reason assigned in the application also that
an opportunity has to be given to the appellant to file
written statement and to cross-examine the witness is not
acceptable since once the appellant admits that he is
served with summons and he also made an application
before the trial Court to set aside the exparte order and
opportunity was also given by the trial Court keeping the
said application in abeyance till filing of the written
statement, this appellant did not choose to file written
statement and did not even contest the matter and hence
he was placed exparte and the trial Court proceeded to
pass the judgment. The suit was disposed of in June-2019
and application was filed in the month of December-2018
almost after six months and even after the disposal of the
suit also, appeal was not filed within limitation.
9. The reasons assigned in the affidavit
accompanying the application that though the counsel was
representing him, he has told that his presence is not
required on each date of hearing as such he could not
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meet and visit the counsel is also not acceptable. When
the application was filed and the same was kept in
abeyance till filing of written statement, the appellant was
not diligent in conducting the case and kept quite from
2018 to 2023 and the reasons assigned in para No.7 of the
affidavit is that the counsel wrote a letter to him and the
same was acknowledged by his family members and his
family members did not inform about the said letter to
him.
10. Having taken note of the reasons assigned in
the application and the affidavit, it is clear that though he
was having knowledge about filing of the suit in the year
2018 and also attempt was made to file an application
under Order IX Rule 7 of CPC and an opportunity was
given to file written statement, the same was not filed and
not participated in the proceeding and as such judgment
was passed in June-2019 itself and he kept quite for a
period of four years and therefore the reasons assigned by
the appellant are not satisfactory.
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11. The appellant has to satisfy the Court for non-
appearance and no such valid reasons are assigned and
each day delay has to be explained and the same has not
been done. It clearly discloses that even though the
appellant was having knowledge and opportunity was
given by the trial Court, the same has not been utilized by
the appellant.
12. Hence, we do not find any ground to condone
the delay of 813 days in filing the appeal and the same is
also even excluding the period of Covid-19 pandemic or
otherwise it is almost four years. Hence, I.A.No.1/2023 is
dismissed. Consequently, the appeal is also dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SH
