Rangashetty vs K S Muthu
2023 Latest Caselaw 6378 Kant

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                                                          NC: 2023:KHC:32446
                                                        RSA No. 1938 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 7TH DAY OF SEPTEMBER, 2023

                                               BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1938 OF 2018 (INJ)

                   BETWEEN:

                   1.    RANGASHETTY
                         S/O THIMMASHETTY
                         AGED BOUT 70 YEARS,

                   2.    NAGESHA
                         S/O LAKSHMANAGOWDA @ KULLEGOWDA
                         AGED ABOUT 35 YEARS,

                   3.    LYANSI PERO
                         S/O PHETRO PHERO
                         AGED ABOUT 40 YEARS,

                         ALL APPELLANTS ARE
                         R/AT HULUKODA VILLAGE,
                         AREHALLI HOBLI,
Digitally signed
by SHARANYA T            BELUR TALUK
Location: HIGH           HASSAN DISTRICT-573201
COURT OF                                                       ...APPELLANTS
KARNATAKA

                             (BY SRI GIRISH B. BALADARE, ADVOCATE)
                   AND:

                   1.    K.S. MUTHU
                         W/O G.T. RAMASWAMY
                         AGED ABOUT 60 YEARS,
                         R/O. UMAMAHESHWARI ESTATE
                         HIREGARJE VILLAGE,
                         AREHALLI HOBLI
                         BELUR TALUK
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                                     NC: 2023:KHC:32446
                                   RSA No. 1938 of 2018




     REPRESENTED BY GPA
     G.T. RAMASWAMY
     S/O THIRUMALAGIRIYAPPA
     AGED ABOUT 72 YERS,
     HIREGARJE VILLAGE,
     AREHALLI HOBLI
     BELUR TALUK
     HASSAN DISTRICT-573 201

2.   KUMARA
     S/O RANGASHETTY
     AGED ABOUT 45 YEARS,

     RAJASHETTY
     SINCE DEAD BY HIS LRS

3.   PARVATHAMMA
     W/O LATE DEVARAJASHETTY
     AGED ABOUT 56 YEARS,
     RESIDING AT HULKOGA VILLAGE
     AREHALLI HOBLI
     BELUR TALUK
     HASSAN DISTRICT

4.   LAVANYA
     D/O LATE DEVARAJASHETTY
     AGED ABOUT 19 YEARS,

5.   BHARATH
     S/O LATE DEVARAJASHETTY
     AGED ABOUT 20 YEARS,

     RESPONDENT NOS.2 TO 5 ARE
     RESIDING AT HULKOGA VILLAGE
     AREHALLI HOBLI
     BELUR TALUK
     HASSAN DISTRICT.
                                        ...RESPONDENTS
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                                             NC: 2023:KHC:32446
                                          RSA No. 1938 of 2018




     THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 05.04.2018 PASSED IN
R.A.NO.147/2017 ON THE FILE OF THE 5THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASAN DISMISSING THE
APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
DATED 27.11.2009 PASSED IN O.S.NO.93/2008 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.) AND JMFC, BELUR.

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

                          JUDGMENT

Heard the appellants counsel. This matter is listed for

admission.

2. The appellants are defendants No.1 to 3, have

challenged the dismissal of appeal R.A.No.147/2017 on the

ground of delay, where there was a delay of 2908 days in filing

the appeal. The only reason assigned in the delay application

that they were unaware of the judgment and decree passed by

the Trial Court and only on filing of Execution Petition by the

plaintiff before the Trial Court in Execution Petition No.98/2012,

the appellants came to know about passing of judgment and

decree. The First Appellate Court having taken note of the

material on record that these appellants have represented

through counsel before the Trial Court and all the five

defendants have represented through different two advocates

NC: 2023:KHC:32446 RSA No. 1938 of 2018

and no doubt now only defendants No.1 to 3 have filed appeal,

but all the defendants 1 to 5 have challenged the judgment and

decree of the Trial Court in RA No.147/2017 and the Trial Court

having taken note of the material on record, the suit was

decreed in 2009 itself and consequent upon the judgment and

decree of granting of permanent injunction, execution petition

was also filed in Execution Petition No.98/2012 and also taken

note of in the cross-examination admitted that they have

engaged the advocate and also the wife of defendant No.4 who

was examined as PW2 also has filed chief affidavit and during

the course of cross-examination, she has deposed her

ignorance about establishment of Civil Judge at Belur. However,

admitted that she had engaged the advocate to represent

them. PW3 is also defendant No.4 and categorically admitted

filing of the civil suit and also transfer of the case before the

Senior Civil Judge Court at Belur and reiterated the very same

evidence of PW2 and the First Appellate Court taking note of

the principles laid down by the judgment of this Court reported

in 2018(1) KCCR 766 in the case of KASTURI BAI AND

OTHERS VS. GURULINGAPPA AND ANOTHER, comes to the

conclusion that, each day delay of filing an appeal has not been

NC: 2023:KHC:32446 RSA No. 1938 of 2018

satisfactorily explained and hence comes to the conclusion that,

delay of 2908 days cannot be condoned. Almost appeal is filed

after 8 years, even though they represented through counsel

before the Trial Court and no sufficient reasons are also given

when they have examined before the First Appellate Court and

hence, I do not find any ground to set aside the order passed in

R.A.147/2017 and no proper reasons are assigned and only

reason assigned is that, they were unaware of the judgment

and admissions are very clear that they have engaged the

counsel before the Trial Court and when such bald reasons are

given and First Appellate Court has not committed any error in

rejecting the appeal on the ground of limitation, since there

was a delay of almost 8 years from 2009 to 2017 and suit is

also for the relief of bare injunction and same was granted by

the Trial Court and hence, no ground is made out to admit and

frame substantive question of law invoking Section 100 of CPC.

Hence, appeal is dismissed.

Sd/-

JUDGE AP