Muniyamma vs Smt. Bhagyamma
2023 Latest Caselaw 1519 Kant

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                                                           RSA No. 401 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 23RD DAY OF FEBRUARY, 2023

                                              BEFORE

                                 THE HON'BLE MR JUSTICE H.P.SANDESH

                             REGULAR SECOND APPEAL NO.401 OF 2020 (SP)

                      BETWEEN:

                      MUNIYAMMA,
                      S/O LATE LAKSHMAIAH,
                      AGED ABOUT 74 YEARS,
                      R/AT KADRIPURA VILLAGE,
                      KASABA HOBLI,
                      MULABAGAL TALUK - 563 131.
                                                                 ...APPELLANT

                           (BY SRI CHANDRASHEKARA REDDY M.V., ADVOCATE)

                      AND:

                      1.   SMT. BHAGYAMMA,
                           D/O LAKSHMAIAH,
                           AGED ABOUT 40 YEARS,
Digitally signed by
SHARANYA T                 R/AT KADRIPURA VILLAGE,
Location: HIGH             KASABA HOBLI, TAYALUR ROAD,
COURT OF                   MULABAGAL TALUK - 563 131.
KARNATAKA

                      2.   K.U. SRINIVAS GOWDA,
                           S/O UTHANOORAPPA,
                           AGED ABOUT 49 YEARS,
                           R/AT N G HULUKUR MAIZARA,
                           KOTHUR VILLAGE,
                           KYASAMBALI HOBLI,
                           BANGARPET TALUK - 563 114.
                                                              ...RESPONDENTS

                           THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
                      AGAINST THE JUDGMENT AND DECREE DATED 24.02.2015
                      PASSED IN RA NO 15/2013 ON THE FILE OF THE II
                      ADDITIONAL SENIOR CIVIL JUDGE AND JMFC ITINERATING
                             -2-
                                       RSA No. 401 of 2020




AT MULBAGAL, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 16.10.2012 PASSED IN
OS.NO.242/2010 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC, MULBAGAL.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

Heard the learned counsel for the appellant on

I.A.No.1/2020 for condonation of delay of 1693 days in

filing the appeal.

2. The factual matrix of the case of the plaintiff

before the Trial Court is that defendant No.1 is the

absolute owner of the suit schedule property and had

offered to sell the same to the plaintiff for total

consideration of Rs.1,10,000/-. The plaintiff agreed to

purchase the suit schedule property. Accordingly, on

12.11.2009, defendant No.1 has executed the registered

agreement of sale and has received an amount of

Rs.1,00,000/- as part of sale consideration before the

witnesses and has affixed her signature agreeing to the

terms and conditions stipulated in the agreement. The

defendant No.1 had agreed to execute the registered sale

RSA No. 401 of 2020

deed within one year by receiving balance consideration.

When the plaintiff approached defendant No.1 several

times and requested to execute the registered sale deed,

defendant No.1 postponed the same on one or other

pretext. Suspecting the bonafide of defendant No.1, the

plaintiff has issued the legal notice to defendant No.1 on

27.07.2010 calling upon her to execute the sale deed by

receiving the balance sale consideration amount of

Rs.10,000/-. Inspite of receipt of legal notice on

31.07.2010, defendant No.1 has not complied the notice

by executing the sale deed. The plaintiff was always

ready and willing to perform his part of contract.

3. On receiving the suit summons, defendant

No.1 appeared and filed the written statement

contending that she was not having exclusive right or

possession over the suit schedule property. It is

contended that there is no partition between defendant

No.1 and her mother with respect to the suit schedule

property. Hence, the Trial Court framed the issues with

regard to proving of the sale agreement and also ready

RSA No. 401 of 2020

and willingness and issue No.4 is also framed with regard

to defence which has been taken by the defendants. The

Trial Court after considering both oral and documentary

evidence of P.W.1 to P.W.3 and the documents at Ex.P.1

to 7 and the evidence of defendant No.1 who has been

examined as D.W.1 and also the evidence of D.W.2 to

D.W.4 and considering Ex.D.1 and 2, directed defendant

No.1 to execute the registered sale deed to an extent of

3/4th share of defendant No.1 in the suit schedule

property in favour of the plaintiff within three months

and on failure to execute the sale deed, the plaintiff is at

liberty to get it executed through the Court

Commissioner.

4. The same is challenged by defendant No.1

before the Appellate Court. The Appellate Court in

R.A.No.15/2013, having considered the grounds urged in

the appeal, formulated the point and confirmed the

judgment and decree of the Trial Court vide order dated

24.02.2015.

RSA No. 401 of 2020

5. This appeal is filed in the year 2020 after lapse

of five years of the judgment and the delay application is

also filed before the Court wherein there is a delay of

1693 days in filing the appeal. The reasons assigned in

the delay application is old age, ill health and as she had

suffered paralytic stroke for nearly 6-7 years. She was

able to recover from her ailment for some extent only

last summer. It is also her case that she was affected

with dengue fever and due to the said ailment, she could

not move again and her life became miserable and she

could not file the appeal within time. It is pleaded in the

affidavit with regard to her ill health and only says that

she had applied for the certified copy in the year 2009

and filed the appeal.

6. This Court after hearing the arguments of the

learned counsel for the appellant, directed to produce the

document with regard to the ill health and treatment.

The learned counsel for the appellant has produced the

document of the year 2020 i.e., dated 14.09.2020 and

the appeal is filed on 13.01.2020. The documents

RSA No. 401 of 2020

produced before the Court is subsequent to the filing of

the appeal. In between February 2015, till filing of the

appeal, no documents is placed to show that she was

suffering from ill health as contended in the affidavit and

there is an inordinate delay of 1693 days in filing the

appeal and in between 2015 to 2020, no documents is

produced till filing of the appeal and the documents relied

upon is also subsequent to the filing of the appeal. When

such being the material available on record, the

documents which have been produced along with memo

will not come to the aid of the appellant. Though it is

contended in the affidavit that she had suffered from

paralysis, in order to substantiate the same, no

document is produced before the Court. The learned

counsel for the appellant submits that the appellant was

taking native medicine and the said contention cannot be

accepted when there is an inordinate delay of 1693 days

and the appellant has to explain each day of delay in

filing the appeal to accept the same. Hence, I do not find

any force in the contention of the learned counsel for the

RSA No. 401 of 2020

appellant that the appellant was suffering from ill health

and hence there was a delay. In the absence of

documentary evidence and satisfactory explanation for

the delay in filing the appeal, I.A.No.1/2020 is dismissed.

Consequently, the appeal is also dismissed.

Sd/-

JUDGE

MD