Karnataka High Court
Mohan S/O Shivarayappa Kivati vs Keerthi D/O Mohan Kiwati on 20 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14892-DB
RFA No.100238 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH 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.100238 OF 2023 (PAR)
BETWEEN:
MOHAN S/O. SHIVARAYAPPA KIWATI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: H.NO.2443, RAVIWAR PETH,
MALAGAR GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-590001.
...APPELLANT
(BY SRI. VINAY S. KOUJALAGI, ADVOCATE)
AND:
1. KEERTHI D/O. MOHAN KIWATI
AGE: 9 YEARS, OCC: STUDENT,
R/O. H.NO.2443, RAVIWAR PETH,
MALAGAR GALLI, GOKAK,
Digitally signed
by K M
TQ: GOKAK, DIST: BELAGAVI,
KM
SOMASHEKAR
Location: HIGH
COURT OF
NOW AT MAHANTESH B.TOTAGI,
SOMASHEKAR KARNATAKA
DHARWAD
BENCH
Date:
KAMATHI FLAT, MASTHAMMA NAGAR,
2023.12.21
12:00:08 +0530
MADIHAL DHARWAD-580001.
2. ANU D/O. MOHAN KIWATI
AGE: 7 YEARS, OCC: STUDENT,
R/O: H.NO.2443, RAVIWAR PETH,
MALAGAR GALLI, GOKAK, TQ: GOKAK,
DIST: BELAGAVI,
NOW AT MAHATENSH B.TOTAGI,
KAMATHI FLAT, MASTHAMMA NAGAR,
MADIHAL DHARWAD-580001.
(RESPONDENT 1 AND 2 ARE MINORS R/BY
THEIR NATURAL MOTHER 3RD RESPONDENT).
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NC: 2023:KHC-D:14892-DB
RFA No.100238 of 2023
3. POOJA W/O. MOHAN KIWATI
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.2443, RAVIWAR PETH,
MALAGAR GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI,
NOW AT: MHANTESH B. TOTAGI,
KAMTHI FLAT, MASTHAMMA NAGAR,
MADIHAL, DHARWAD-580001.
4. HANAMAVVA W/O. SHIVARAYAPPA KIWATI
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: RAVIWAR PETH, MALAGAR GALI,
DIST: BELAGAVI-590001.
5. IRANNA S/O. SHIVARAYAPPA KIWATI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: R.S. NO.289/3B/1, FLAT NO.7,
VIDYA NAGAR, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-590001.
6. BASAVARAJ S/O. SHIVARAYAPPA KIWATI
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. H.NO. 47/1, ADAVI FLAT,
BIDNAL, HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD-580001.
7. ANAND S/O. SHRIVARAYAPPA KIWATI
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: H.NO. 47/1, ADAVI FLAT, BIDNAL,
HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD-580001.
8. UDAYA S/O. SHIVARAYAPPA KIWATI
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: H.NO. 47/1, ADAVI FLAT,
BIDNAL, NEAR NO.10 SCHOOL, HUBBALLI,
TQ: HUBBALLI, DIST: DHARWAD-580001.
...RESPONDENTS
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NC: 2023:KHC-D:14892-DB
RFA No.100238 of 2023
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC.,1908, AGAINST THE JUDGMENT
AND DECREE DATED 01.07.2022 PASSED IN O.S.NO.720/2021
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE
GOKAK, DECREEING THE SUIT FILED FOR PARTITION.
THIS RFA, COMING ON FOR ORDERS, THIS DAY,
SANDESH, J., PASSED THE FOLLOWING:
ORDER
This appeal is filed with a delay of 200 days, and the
matter listed for consideration of I.A. No.1/2023 filed for
condonation of the delay in filing the appeal.
2. In support of the application I.A. No.1/2023, an
affidavit is sworn to by the appellant stating that the suit was
decreed ex parte without giving sufficient opportunity to him to
putforth the facts about filing of the other suit which is
comprehensive. It is also stated that his counsel intimated him
about the suit being decreed in the second week of July, 2022,
and as it was rainy season, he was busy in agricultural
operations and could not meet his counsel. It is further stated
that he met his counsel in the last week of November, 2022,
and his counsel advised him to prefer an appeal. In the
meanwhile, one of his brothers and also his brother-in-law
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approached him with a proposal for compromise and there were
talks held in the presence of the elders, however, the same was
not fruitful, and hence there is a delay in filing the appeal. It is
stated that the delay is due to bona fide reasons and if the
delay is condoned no loss or hardship would be caused to the
respondents. Hence, it is prayed that the application be allowed
and the delay in filing the appeal be condoned.
3. Having heard the appellant's counsel and on perusal
also the reasons assigned in the affidavit accompanying the
application and also the impugned judgment and decree of the
Trial Court, it is seen that the suit is filed for the relief of
partition by metes and bounds in the year 2021 and the
appellant herein, who was arrayed as defendant No.6, was duly
represented by an advocate but had not filed any written
statement contesting the matter. Defendants No.1 to 5 did not
chose to appear and they were placed ex parte. When the
appellant, who was represented through a counsel, and not
filed written statement, the Trial Court proceeded to record
evidence of the plaintiffs and considered the documents which
were produced and held that the plaintiffs were entitled to 1/3rd
share each in the 1/6th share of their father-defendant No.6 in
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the suit properties by metes and bounds. When the appellant in
spite of service of notice, and though had engaged a counsel,
had not filed any written statement contesting the matter
nothing survives for consideration in this appeal. It is stated in
the affidavit that he had filed one more suit for partition and
the same is partly decreed. When the appellant was able to
contest the matter which he had filed, in the suit filed for the
relief of partition in this case, he had not filed any written
statement and also suit is disposed of on 1st July 2022.
4. Having perused the affidavit, it is admitted by the
appellant that granting of decree on 01.07.2022 was intimated
to him in the second week of July 2022. The appellant has not
taken any steps to file an appeal immediately after the disposal
of the suit, and the reason assigned is that, as it was rainy
season, he was busy in agricultural operations and he met his
Advocate only in the last week of November 2022. The
appellant has also sworn to an affidavit that his brother and
brother-in-law had approached him for compromise. Having
considered the grounds urged in the affidavit the same is not
satisfactory, and had the knowledge of decree in the same
month of July itself. The appellant has to satisfy with regard to
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non-filing of the appeal within the time and the very affidavit
discloses that he had knowledge of disposal of the suit in the
month of July 2022 itself, but has filed the appeal only in the
month of April, 2023 i.e., on 17.04.2023. The appellant has not
pursued the matter diligently before the Trial Court and while
filing appeal also. In the affidavit each day's delay has not been
properly explained by the appellant. Hence, we do not find any
ground to allow the application I.A. No.1/2023 and to condone
the delay in filing the appeal.
Hence, I.A. No.1/2023 is rejected. Consequently, the
appeal also stands dismissed.
Pending I.As., if any, do not survive for consideration and
the same is disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KMS
