Karnataka High Court
Smt Anjinamma vs Smt Anjinamma on 9 June, 2023
Bench: H.P.Sandesh
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MFA No. 1482 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.1482 OF 2023 (CPC)
BETWEEN:
SMT. ANJINAMMA,
D/O LATE PATEL MAREGOWDA,
W/O G. NARAYANAPPA,
SINCE DEAD BY LRS.
1. SMT.RATHANAMMA,
D/O LATE ANJINAMMA,
AGED ABOUT 52 YEARS,
R/AT UTTHANAHALLI VILLAGE,
BANGALORE NORTH TALUK.
2. SMT. DHAMAYANTHI,
D/O LATE ANJINAMMA,
W/O LATE H.LOKESH,
AGED ABOUT 50 YEARS,
Digitally signed
by SHARANYA T R/ AT VIJAYANAGAR, BENGALURU.
Location: HIGH
COURT OF 3. G.N.SURESH
KARNATAKA
S/O.LATE ANJINAMMA,
AGED ABOUT 46 YEARS
R/O NANDI VILLAGE AND HOBLI,
CHIKKABALLAPUR TALUK.
4. SMT. VIMALA DEVI
D/O.LATE PATEL MAREGOWDA,
W/O. H.D.ANJINAPPA,
AGED ABOUT 68 YEARS,
R/AT. HASIGALA VILLAGE,
SULLIBELE HOBLI,
HOSAKOTE TALUK.
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MFA No. 1482 of 2023
5. SMT. MANJULA,
D/O LATE PATEL MAREGOWDA,
W/O G.RAMESH,
AGED ABOUT 65 YEARS,
R/AT AGALAGURKI VILLAGE,
NANDI HOBLI,
CHICKBALLAPUR TALUK.
...APPELLANTS
(BY SRI SHIVARAMU H.C., ADVOCATE)
AND:
1. SMT. ANJINAMMA,
W/O LATE PATEL MAREGOWDA
AGED ABOUT 91 YEARS.
2. SRI SHIVAKUMAR,
S/O LATE KRISHNE GOWDA,
AGED ABOUT 46 YEARS.
3. SRI SUNIL KUMAR,
S/O LATE KRISHNE GOWDA,
AGED ABOUT 39 YEARS.
4. SMT. LAVANYA,
D/O LATE KRISHNE GOWDA,
AGED ABOUT 36 YEARS.
5. SMT. SAROJAMMA,
W/O LATE NARASEGOWDA,
AGED ABOUT 55 YEARS.
ALL R1 TO R5 ARE R/AT KARAHALLI VILLAGE,
DEVANAHALLI TALUK.
6. NAGAMANI,
W/O LATE HARISH,
AGED ABOUT 36 YEARS.
7. DILIP GOWDA,
S/O LATE HARISH,
AGED ABOUT 1 YEAR.
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MFA No. 1482 of 2023
8. KAUSHIK GOWDA,
S/O LATE HARISH,
AGED ABOUT 9 YEARS
R7 AND R8 ARE MINORS,
REPRESENTED BY THEIR MOTHER R6.
R6 TO R8 ARE R/AT KARANAHALLI VILLAGE,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
9. SMT. PRAPULLA,
D/O LATE NARASEGOWDA,
W/O KRISHNAMURTHY
AGED ABOUT 33 YEARS,
R/AT DOOR NO.99,
NEAR VEMAREDDY'S BUILDING,
CHANNASANDRA VILLAGE,
BIDARAHALLI POST,
HOSAKOTE TALUK.
10. SMT. ANITHA,
D/O LATE NARASEGOWDA,
W/O VENKATARAJU,
AGED ABOUT 30 YEARS,
R/T KUDUVATH VILLAGE,
NANDI HOBLI,
CHICKBALLAPURA TALUK.
11. SMT. PANKAJA,
D/O LATE NARASEGOWDA,
W/O MUNIRAJU,
AGED ABOUT 27 YEARS,
R/AT NADUVATHI VLLAGE AND POST,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT.
12. SRI K.M. MUNIRAJU,
S/O LATE PATEL MAREGOWDA,
AGED ABOUT 62 YEARS.
13. SRI K.M. ASHOK KUMAR,
S/O LATE PATEL MAREGOWDA,
AGED ABOUT 60 YEARS.
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MFA No. 1482 of 2023
R12 AND R13 ARE R/AT KUNDANA HOBLI,
DEVANAHALLII TALUK,
BANGALORE RURAL DISTRICT.
14. SRI R. ANAND,
S/O RAVINDRA,
MAJOR IN AGE.
15. SRI MANU B,
S/O M.BHAKATHVATHSALAM.
16. SRI SIDDARTHA,
S/O SURENDRANATH.
17. SMT. PRATHIBA,
W/O SURENDRANATH.
18. SRI M. RAMESH
S/O MOOLA RANGAPPA.
19. SRI VISHNU R,
S/O LATE RAVINDRA.
20. SRI ANAND R,
S/O LATE RAVINDRA.
R14 TO R20 ARE R/AT MOOLA FARM,
YARRAPANAHALLI JODI VILLAGE,
KARAHALLI POST, KUNDANA POST,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
21. N. MURTHI,
S/O LATE ANJINAMMA,
AGED ABOUT 48 YEARS,
R/O NANDI VILLAGE AND HOBLI,
CHIKKABALLAPUR TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI HARISH N.R., ADVOCATE FOR R2 TO R13,
SRI AJESH KUMAR S, ADVOCATE FOR R14,
R15 TO 21 ARE SERVED,
R1 DECEASED)
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MFA No. 1482 of 2023
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
29.10.2021 PASSED ON IA NO.19 IN O.S.NO.175/2011 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, REJECTING IA NO.19 FILED UNDER ORDER 39
RULE 1 AND 2 READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants on
I.A.No.1/2023 for condonation of delay of 273 days in filing
the appeal.
2. In support of the application, an affidavit is
sworn to by appellant No.3, wherein in paragraph No.3 it is
stated that the impugned order was passed on 29.10.2021
by rejecting the application filed under Order 39 Rules 1
and 2 of CPC and he was supposed to file the Miscellaneous
First Appeal immediately. When that being the situation,
he suffered stroke subsequent to the passing of the order
dated 29.10.2021 and he was taking ayurvedic treatment.
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Later, he had kidney issues from 01.09.2022 and he took
treatment for the same and he was not aware of the order
passed by the Trial Court. On enquiry, his advocate
informed that the copy was not taken and hence he
instructed the counsel to take the copy on 05.08.2022 and
once again he fell ill and he could not take steps to file the
appeal in time and hence the delay has to be condoned.
3. Per contra, the learned counsel for respondent
No.14 filed the objection statement to the application and
produced the document before this Court as document
No.1. It discloses that the very deponent has filed the
application before the Trial Court on 08.06.2022 and so
also filed the applications in the month of September 2022
and also filed complaint in the month of June 2022. Apart
from that, the learned counsel brought to the notice of this
Court that even after rejection of the application, the
appellant was very much present before the Court
immediately after the order passed by the Trial Court and
he appeared before the Trial Court and hence the very
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affidavit sworn to condone the delay is far away from truth
and hence the delay cannot be condoned.
4. The learned counsel for the appellants submits
that the delay has to be condoned and the matter has to be
heard on merits and the delay is only 273 days and hence
the Court has to take a lenient view.
5. Having heard the respective learned counsel,
having considered the averments made in the affidavit, the
statement of objection and the documents produced before
the Court, there is no dispute with regard to the fact that
I.A. was dismissed on 29.10.2021. In the affidavit, the
appellant No.3 has sworn before the Court that
immediately after the said order, he had suffered stroke.
But in order to prove the same, no document is placed
before the Court. His contention is that he was taking
ayurvedic treatment for stroke and also he was having
kidney issues in the month of September 2022 and
subsequently only he came to know through his advocate
with regard to the impugned order. The very documents
produced by respondent No.14 clearly discloses that the
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MFA No. 1482 of 2023
appellant No.3, who has sworn the affidavit had filed the
applications before the Trial Court in the month of June
2022 and also filed the complaint before the police in June
2022 and again application is filed in the month of
September 2022 before the Trial Court. The order sheet
which has been produced along with the statement of
objections clearly discloses that even after the dismissal of
the application also, he appeared before the Trial Court
continuously. When such being the case, the very
averments made in the affidavit falsifies the sworn
testimony of appellant No.3.
6. Having taken note of the documentary material
placed before the Court by appellant No.3, the very reason
given in the affidavit is not substantiated and the document
produced by respondent No.14 substantiates with regard to
the sworn testimony of appellant No.3 that he was having
knowledge of the impugned order and also filed the
necessary applications before the Trial Court and also filed
affidavit and he was very much present before the Court
and the Police. Hence, I do not find any ground to condone
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the delay of 273 days in filing the appeal. I.A.No.1/2023 is
dismissed and consequently, the appeal is also dismissed.
Sd/-
JUDGE
MD
