Sri Veerabhadrappa vs Smt. Parvathamma
2023 Latest Caselaw 3645 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF JUNE, 2023

                          BEFORE

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

                 M.F.A.NO.2749/2014 (CPC)

BETWEEN:

SRI VEERABHADRAPPA.
SINCE DECEASED BY

L.R.NEELAMMA,
W/O LATE VEERABHADRAPPA,
AGED ABOUT 56 YEARS,
RESIDING AT DASANUR VILLAGE,
NANJANGUD TALUK.
                                               ... APPELLANT

               (BY SRI C.R. PATIL, ADVOCATE)

AND:

1.     SMT. PARVATHAMMA,
       W/O MALLAPPA,
       SINCE DECEASED BY L.R. WHO
       ARE RESPONDENT NOS.2 TO 5.

2.     SMT.RATHNAMMA,
       AGED ABOUT 60 YEARS,
       W/O LATE PUTTAMANJAPPA,
       RESIDING AT BHOGHAPURA,
       CHAMARAJANAGAR TALUK.

3.     SMT. DAKSHAYANAMMA,
       AGED ABOUT 55 YEARS,
       W/O MAHADEVAPPA,
       RESIDING AT HONNUR,
                           2



      HELANDUR TALUK,
      CHAMARAJANAGAR TALUK & DISTRICT.

4.    SMT. AMBIKA,
      AGED ABOUT 50 YEARS,
      W/O NATARAJAPPA,
      RESIDING AT NANJEDEVANAPURA,
      CHARAJANAGAR TALUK,
      SINCE DECEASED BY

4A.   N.C. NATARAJAPPA,
      S/O CHIKKAMALLAPPA,
      RESIDING AT NANJADEVANAPURA,
      CHAMARAJANAGAR TALUK & DISTRICT.

4B.   SANKALPA,
      S/O N.C.NATARAJU,
      AGE: 30 YEARS
      RESIDING AT NANJADEVANAPURA,
      CHAMARAJANAGAR TALUK & DISTRICT.

4C.   LEELA,
      D/O N.C.NATARAJU,
      AGE: 28 YEARS,
      RESIDING AT NANJADEVANAPURA,
      CHAMARAJANAGAR TALUK & DISTRICT.

4D.   SOUMYA,
      D/O N.C.NATARAJU,
      AGE: 26 YEARS,
      RESIDING AT NANJADEVANAPURA,
      CHAMARAJANAGAR TALUK & DISTRICT.

5.    YUGA KUMAR,
      AGED ABOUT 36 YEARS,
      S/O LATE NANJUNDASWAMY,
      RESIDING AT HONNUR,
      YELANDUR TALUK
      CHAMARAJANAGAR TALUK & DISTRICT.
      SINCE DECEASED BY
                             3



5A.   JAYAMMANI,
      W/O NANJUNDASWAMY.
      SINCE DEASED BY.

5A(a) MANI,
      W/O PUTTAMALLU (PATEL),
      AGE: 60 YEARS,
      RESIDING AT HONNUR,
      YELANDUR POST,
      CHAMARAJANAGAR TALUK & DISTRICT.

6.    SAMPATH,
      AGE: 39 YEARS,
      S/O LATE NANJUNDASWAMY
      RESIDING AT HONNUR,
      YELANDUR TALUK,
      CHAMARAJANAGAR TALUK & DISTRICT.

7.    SANGAPPA,
      AGE: 56 YEARS,
      S/O LATE MALLAPPA,
      RESIDING AT DASANUR VILLAGE,
      NANJANGUD TALUK.

8.    MAHADEVAPPA,
      AGE: 54 YEARS.
      SINCE DECEASED BY

8A.   RAJAMMA,
      W/O LATE DASANURU MAHADEVAPPA,
      AGE: 55 YEARS,
      RESIDING AT BASAVANAGUDI ROAD,
      HONNURU VILLAGE, YELLANDURU TALUK,
      CHAMARAJANAGARA DISTRICT.

8B.   ROOPA (ONNUR),
      W/O NAGARAJU,
      AGE: 28 YEARS,
      RESIDING AT TANKALLI VILLAGE,
      KUNDUR POST, B.G.PURA HOBLI,
      MANDYA DISTRICT.
                                 4



8C.    SUMA (HONNUR),
       W/O PRASANNA,
       AGE: 25 YEARS
       RESIDING AT MELAGIPURA VILLAGE,
       BADANGUPPE POST,
       KASABA HOBLI,
       CHAMARAJANAGARA TALUK & DISTRICT
       PIN CODE No.571313.

9.     NAGAMMA,
       AGED ABOUT 52 YEARS,
       D/O OF LATE MALLAPPA
       R/O DASANUR VILLAGE,
       NANJANGUD TALUK -571303.
                                             ... RESPONDENTS


     (BY SRI ANIL KUMAR S, ADVOCATE FOR R2, R3 & R4(A-D);
               R2 TO R5 ARE LRS OF DECEASED R1;
                    R5A & R5A(a) ARE SERVED;
             R6, R7, R8(A), R8(B), R8(C) ARE SERVED;
                          R9 IS SERVED)


       THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(T) OF
CPC, AGAINST THE ORDER DATED 06.02.2014 PASSED IN
MISC.NO.6/2013 ON THE FILE OF THE II ADDITIONAL DISTRICT
JUDGE,      MYSORE,      DISMISSING    THE   PETITION     FOR
RESTORATION OF APPEAL IN R.A.NO.4/2000.


       THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT      ON      12.06.2023,   THIS   DAY   THE    COURT
PRONOUNCED THE FOLLOWING:
                                 5



                        JUDGMENT

This appeal is filed challenging the order of dismissal

dated 06.02.2014, passed in Misc.No.6/2013, on the file of

the II Additional District, Judge, Mysore, on the ground of

delay.

2. The factual matrix of the case of the

petitioner/appellant is that he had suffered the judgment and

decree passed in O.S.No.24/1992. Being aggrieved by the

said judgment and decree, R.A.No.4/2000 was filed before the

First Appellate Court and the same was dismissed for default

on 04.03.2008. Being aggrieved by the order of dismissal,

Misc.No.6/2013 was filed for the relief of restoration of

R.A.No.4/2000 and there was a delay in filing the said

petition. The First Appellate Court having recorded the

evidence of the petitioner, dismissed the said petition on the

ground that the delay of three years nine months has not

been properly explained and no sufficient cause is placed

before the Court to condone the delay. Hence, the present

miscellaneous first appeal is filed before this Court.

3. The main ground urged in the appeal is that the

Court below has committed an error in not condoning the

delay in filing the petition. It is contended that

Veerabhadrappa was suffering from cancer for more than four

years and he was looking after the litigation in question and

he could not meet the counsel and dismissal of the appeal for

default was not known to the appellant. The said

Veerabhadrappa died on account of the said disease and

therefore immediately after coming to know of the dismissal

of the appeal, the appellant challenged the same by filing the

miscellaneous application and hence there was a delay and

delay is on account of bonafide reasons and the same has not

been accepted by the Trial Court. It is contended that on

account of delay, merit should not be made a scapegoat. It is

contended that the suit filed by the plaintiff for declaration

and possession has been decreed and validity of the said

decree has been challenged and the decree was stayed in

R.A., but R.A. was dismissed for default and not on merits. If

R.A. is restored, it will meet the ends of justice. The Court

was not justified in relying upon the judgment of this Court

while dismissing the petition and the said judgment is wholly

inapplicable to the facts and circumstances of the case.

4. The learned counsel for the appellants relied upon

the judgment of this Court in the case of BASAVARAJ v.

CHANDRAIAH reported in 2017 (2) KCCR 1457, wherein

this Court held that in a case of application for setting aside,

an opportunity is given to the defendant to contest the suit by

imposing reasonable cost and no prejudice will be caused to

the plaintiff and substantial rights of parties should not be

deprived on technicalities, though the defendant should have

been more vigilant and order rejecting the same is defeating

the very substantial justice.

5. Though respondent Nos.2, 3 and 4(A to D) are

represented through the counsel, the counsel has not argued

the matter inspite of opportunity is given. Hence, taken as no

arguments.

6. Having heard the learned counsel for the

appellant, the point that arise for the consideration of this

Court is:

             Whether     the     order      impugned        dismissing
        Misc.No.6/2013           requires         interference      for
        restoration of RA?


        7.     Having    considered       the     material    available      on

record, O.S.No.24/1992 was filed for the relief of declaration

and possession and the same was decreed on 04.12.1999

after seven years. It is important to note that the judgment

and decree has been challenged before the First Appellate

Court in R.A.No.4/2000 and the appeal was filed on

16.01.2000 and there was a delay in filing the R.A. and also

an order has been granted staying the judgment and decree

of the Trial Court by the First Appellate Court. It is important

to note that when the suit for declaration and possession was

decreed, the appeal was pending from 2000 to 2008. On

perusal of the entire order sheet, it discloses that the case

was dismissed on 04.03.2008 and the case was set down for

arguments on several occasions and the matter was

adjourned at the request of the learned counsel for the

appellant before the First Appellate Court and ultimately it

was dismissed on 04.03.2008. It is important to note that

Misc. petition was filed on 12.01.2013 almost after three

years nine months and the reason given for delay is that the

appellant was suffering from cancer and hence, he could not

meet the advocate.

8. In support of the contention, the petitioner

examined one witness as P.W.1 and got marked the

documents at Exs.P.1 to 6. Ex.P.1 is the certified copy of the

order sheet in R.A.No.4/2000, Ex.P.2 is the medical certificate

issued by Kidwai Memorial Institute of Oncology, Ex.P.3 is the

prescription slip, Ex.P.4 is the treatment card, Ex.P.5 is

another prescription slip and hence, it is clear that Exs.P.2 to

5 are pertaining to the medical treatment. Ex.P.6 is the death

certificate of the said Veerabhadrappa. It is important to note

that the suit was decreed on 04.12.1999 and the appeal was

filed on 16.01.2000 and the matter was pending for a period

of eight years and ultimately it was dismissed on 04.03.2008.

It is important to note that it is pleaded that the petitioner

came to know about the dismissal of the appeal on

04.12.2011 and he was able to contact his counsel upto

05.01.2012 and P.W.1 is none other than the wife of

Veerabhadrappa. The First Appellate Court taken note of the

document of Ex.P.2, which discloses the date of registration

for treatment dated 12.09.2011 i.e., for radiotherapy on

09.11.2011 and prior to this document dated 12.09.2011, no

documents are produced. The Court also taken note of the

document of Ex.R.2, which is the Execution petition

No.314/2010 and after the dismissal of the appeal, an

execution petition was filed seeking the possession. Ex.R.3

clearly depicts that notice was issued in execution petition and

he appeared before the Court in execution petition on

26.07.2010, but Misc. petition was filed in 2012, even after

having the knowledge. The very contention that he came to

know about the dismissal of the appeal on 04.12.2011 cannot

be accepted, since in the execution petition he appeared

before the Court and the Court comes to the conclusion that

no sufficient cause is made out by the petitioner in order to

show to the Court what prevented him in approaching the

Court and hence comes to the conclusion that Exs.P.3 to 5 will

not come to the aid of the petitioner since there was a delay

of three years nine months in filing the Misc. petition. Even

though he was aware of the execution petition was filed

wherein sought for possession consequent upon the decree

and dismissal of the appeal, no Misc. petition was filed and

hence the Trial Court not accepted the reason given by the

petitioner.

9. The Court also taken note of the principles laid

down in the judgment in the case of BASAVARAJU AND

ANOTHER v. SPL. ACQUISITION OFFICER reported in

2013 (4) KCCR 3430 (SC), wherein the Court taken note of

the fact that if material is found to have not acted diligently or

remained inactive, there cannot be a justified ground to

condone the delay. No doubt, the learned counsel for the

appellant relied upon the judgment of this Court reported in

2017 (2) KCCR 1457 (supra), wherein it is held that

substantial justice should not be pitted against the

technicalities and there is no dispute with regard to the said

principle. But in the case on hand, the petitioner was inactive

even though he was having knowledge about the dismissal of

the appeal and execution petition was filed, he did not file the

Misc. petition for restoration of the appeal immediately and

only filed after taking the possession. Having taken note of

both oral and documentary evidence placed on record, the

First Appellate Court dismissed Misc.No.6/2012 having

considered the fact that there is a delay of three years nine

months. Apart from that, the order sheet of R.A.No.4/2000

discloses that though appeal was filed in 2000, the same was

dismissed in 2008 and several opportunities was given to

argue the case and the counsel did not argue the case. When

there is an inordinate delay and not diligent in prosecuting the

case, the question of exercising the discretion does not arise

and hence I do not find any error committed by the First

Appellate Court in dismissing the application filed under

Section 5 of the Limitation Act and no ground was made out

to condone the delay. Unless sufficient cause is shown to

condone the delay, the question of condoning the same does

not arise since the documents produced by the appellant does

not inspire the confidence of the Court. Hence, I do not find

any merit in the appeal to reverse the finding of the Trial

Court. Hence, I answer the point for consideration in the

negative.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD