Karnataka High Court
Gangappa S/O Shambulingappa ... vs Devakka W/O Chinnappa Shirur on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14880-DB
RFA No. 100316 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH 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. 100316 OF 2023 (PAR/POS)
BETWEEN:
GANGAPPA
S/O. SHAMBULINGAPPA GUDASALAMANI,
AGE: 64 YEARS, OCC: AGRICULTURIST,
R/O: GUDISAGAR,
TQ: NAVALGUND DIST: DHARWAD
...APPELLANT
(BY SRI. ROSHAN S. CHABBI, ADVOCATE)
AND:
1. DEVAKKA
W/O. CHINNAPPA SHIRUR
AGE: 67 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK
R/O: HALLIKERI, TQ: NAVALGUND,
SAMREEN DIST: DHARWAD-582208
AYUB
DESHNUR 2. SMT. MAHADEVI
W/O. SHAMBULINGAPPA GUDASALAMANI
Digitally signed AGE: 91 YEARS,
by SAMREEN
AYUB OCC: AGRICULTURE AND HOUSEHOLD WORK
DESHNUR R/O: HALLIKERI TQ: NAVALGUND,
Date:
2023.12.21 DIST:DHARWAD-582208.
11:33:23 +0530
3. VINODREDDY
S/O. GOVINDARADDY KONDIKOPPA
AGE: 59 YEARS,
OCC: AGRICULTURIST,
R/O: GUDISAGAR,
TQ: NAVALGUND,
DIST: DHARWAD-582208.
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NC: 2023:KHC-D:14880-DB
RFA No. 100316 of 2023
4. SMT. MAHADEVI URF. AKKAMAHADEVI
W/O MALLAPPA BHADRASHETTY,
AGE: 36 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK
R/O: LAKAMAPUR,
TQ: AND DIST: DHARWAD-580006.
...RESPONDENTS
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 READ
WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 26.03.2018 PASSED IN
O.S.NO.256/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, NAVALGUND. FURTHER
PRAYED FOR DISMISSAL OF PLAINTIFF'S SUIT FOR DECLARATION,
PARTITION AND CLAIM BY DEFENDANT NO.1 WITH COSTS
THROUGHOUT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
H.P.SANDESH, J., DELIVERED THE FOLLOWING:
ORDER
Heard the appellant's counsel on I.A.No.1/2023.
2. There is a delay of 1892 days in filing the appeal. In
the affidavit filed in support of the application, it is stated that
the appellant was not aware of filing of the suit and passing of
preliminary decree against him. It is contended that, summons
were not served on him, the plaintiff has played a fraud on the
court by managing to get the endorsement of service of
summons by forging the signatures of the appellant and
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passing of a decree by the Trial Court without hearing the
appellant is bad in law. Even he was not served with court
notice in final decree proceedings and he came to know
recently of passing of preliminary decree. In the affidavit he
also submits that he had no assistance from his family
members. His eldest son had left Gudisagar in the year 2009
and sought employment at Hospet, second son-Basavaraj was
student studying at Dharwad and third son is a truck driver. He
made enquiry and came to know about the passing of
preliminary decree and on the advise of local advocate he
approached the High Court by filing the present appeal. It is
also mentioned in paragraph 6 of the affidavit that the certified
copies were applied by him on 02.03.2023 and he secured the
copies on 14.03.2023. He entrusted the responsibility to prefer
an appeal to his eldest son but his son suffered viral fever and
took treatment from 18.05.2023 and hence, there is a delay in
filing the present appeal after obtaining certified copies. The
reason for delay is bonafide and not intentional one and hence,
the same may be condoned. The learned counsel would also
submit that the delay has been properly explained in the
affidavit and he was not having knowledge of filing of the suit
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by the plaintiff. Even the counsel would submit that the final
decree petition is also disposed off and separate appeal is also
filed against the final decree proceedings and the same is
pending before this Court. Hence, prayed to allow the
application and condone the delay in filing the appeal.
3. Having heard the learned counsel for appellant and
on perusal of the judgment and decree passed on 26.03.2018,
it is noticed that the plaintiff and defendants are the family
members. The reason assigned by the appellant for delay is
that he was not aware of filing of the suit by the plaintiff. The
allegation made in the plaint against defendant No.2, who is
the appellant in this appeal, is that he is the kartha of the
family and was looking after the affairs of the family and he got
the properties transferred to his name by playing a fraud.
4. On perusal of the judgment of the Trial Court it is
clear that defendants 1 and 3 appeared before the Trial Court
and filed their written statement. Defendant No.2 i.e. appellant
herein and defendant No.4 even after service of summons did
not appear before the Trial Court and they have been placed
exparte. It is also the contention of defendant No.1 in the
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written statement that this defendant No.2 executed a sale
deed in favour of defendant No.3 and also executed a gift deed
in favour of defendant No.4 and the same is not binding on him
and hence, it is clear that defendant No.2 already executed gift
deed in favour of defendant No.4 and both of them have not
contested the matter before the Trial Court and the reason
given before this Court that they were not aware of the same
and the plaintiff managed to get an endorsement for service of
notice by forging the signature of the appellant cannot be
accepted when the suit was filed between the family members
and when this defendant No.2-appellant herein is Kartha of the
family and also got the sale deed and gift deed in favour of
defendants 3 and 4. When such allegations are made, we do
not find any error committed by the Trial Court in decreeing the
suit. When this defendant No.3 and the defendant No.4 being
the beneficiaries from the appellant herein, the contention that
both of them were not aware of the same, cannot be accepted.
The very contention of the appellant that plaintiff managed to
get endorsement for having served the notice on defendant
No.2, cannot be accepted. If really the plaintiff has managed to
get endorsement for having served the notice by forging the
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signature of the appellant, the appellant ought to have
approached the appropriate forum with regard to the said act,
but the same is not done and after lapse of nearly six years,
the appellant approached this Court by filing this appeal. It is a
settled law that each day's delay has to be explained by the
appellant. Even having knowledge about the judgment and
decree passed in the suit on 26.03.2023 and the copies were
also obtained on 14.03.2023, the appeal is also filed in the
month of June-2023. Having considered the reasons, we do not
find any ground to condone the delay of 1892 days in filing the
appeal. Hence, there is no merit in the application to condone
the delay. I.A.No.1/2023 is dismissed and consequently the
appeal also stands dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
