Simon D'Souza vs Henry Francis D'Mello
2023 Latest Caselaw 671 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JANUARY, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 R.S.A.NO.603/2017 (PAR)

BETWEEN:

SIMON D'SOUZA,
S/O LEGORI D'SOUZA,
AGED ABOUT 55 YEARS,
R/AT BEEDIPALKE,
NAVOOR VILLAGE,
BANTWAL TALUK, D.K.-574211.
                                               ...APPELLANT

              (BY SRI SACHIN B.S., ADVOCATE)

AND:

HENRY FRANCIS D'MELLO,
S/O LAWRENCE D'MELLO,
AGE 56 YEARS,
R/AT MERAMAJALU VILLAGE,
BANTWAL TALUK, D.K.-574 211.
                                           ...RESPONDENT

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE ORDER DATED 28.02.2017 PASSED ON IA NO.2
IN RA NO.13/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BANTWAL DISMISSING IA NO.2 FOR DELAY FILED UNDER
ORDER XXII RULE 9 OF CPC AND CONSEQUENTLY DISMISSING
THE APPEAL AND CONFIRMING THE FINAL DECREE DATED
24.08.2011 PASSED IN FDP NO.1/2007 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE BANTWAL. IN OS NO.116/2000
DRAWING FINAL DECREE IN TERMS OF COMMISSIONER
REPORT.
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    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellant.

2. This appeal is filed challenging the order dated

28.02.2017, passed in R.A.No.13/2013, on the file of the Senior

Civil Judge, Bantwal.

3. The factual matrix of the case of the plaintiff before

the Trial Court is that the plaintiff sought for a judgment and

decree to grant the share and the original suit was decreed and

subsequently final decree petition was also filed. In the final

decree petition, this appellant is a party to the proceedings and

final decree was also passed and possession was also taken and

thereafter after delay of 15 months, appeal was filed before the

Appellate Court in R.A.No.13/2013, wherein an application was

filed to condone the delay. The Appellate Court having perused

the material available on record and the grounds urged in the

application for condonation of delay, heard the matter and

dismissed the appeal on the ground that there was a delay of

512 days in filing the appeal. Hence, the present second appeal

is filed before this Court.

4. The learned counsel for the appellant would

vehemently contend that the Appellate Court committed an error

in dismissing the appeal on the ground of delay inspite of delay

was explained. The learned counsel would contend that the

appellant was suffering from ill-health and he could not contact

the advocate to prefer an appeal immediately and the Courts

below committed an error in dismissing the appeal and

confirming the judgment and decree of the Trial Court, which is

patently illegal. It is also contended that the Appellate Court is

not right in dismissing the appeal as the same is barred by

limitation when the appellant has shown sufficient cause to

condone the delay. Hence, it is a case to admit the second

appeal and frame substantial question of law.

5. Having heard the learned counsel for the appellant

and also on perusal of the material available on record, it is not

in dispute that the suit was filed for the relief of partition and the

suit was decreed and consequent upon passing of preliminary

decree, final decree proceedings was also initiated in FDP

No.1/2007 and in FDP No.1/2007, the appellant has participated

in the proceedings. To that effect, document is also placed

before the Court i.e., Exs.R.1, 4 and 5 and order sheet in FDP is

produced as Ex.R2 and the same is noted by the First Appellate

Court while considering the application filed for condonation of

delay of 512 days. The appellant was represented through the

counsel and final decree petition was also drawn and the

respondent took the possession of his share in execution and

possession was given to the respondent and the appellant was

aware of all these proceedings before the Court both in suit and

final decree proceedings and also in execution proceedings and

filed an appeal and there was a delay of 512 days. No document

of medical certificate is produced and the same is not accepted

by the First Appellate Court as he was having only headache and

comes to the conclusion that not shown any sufficient cause to

condone the delay. The appellant participated in the original

suit, final decree proceedings and also in execution petition and

admittedly possession was also delivered in favour of the

respondent in terms of the preliminary decree, final decree and

also in execution and delay of 512 days i.e., 15 months is not

explained by the appellant. Hence, I do not find any error

committed by the First Appellate Court in dismissing the appeal

on the ground of delay and reasoned order was passed having

considered the material available on record. When such being

the case, I do not find any ground to invoke Section 100 of CPC

to frame substantial question of law and admit the appeal.

6. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD