Sri A Jayaram vs Sri R Jayamma
2023 Latest Caselaw 6445 Kant

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                                                          NC: 2023:KHC:32575
                                                         RSA No. 290 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 290 OF 2018 (PAR)

                   BETWEEN:

                   1.    SRI A. JAYARAM
                         S/O. LATE ARAVANNA
                         AGED ABOUT 59 YEAS,
                         R/AT BEHIND WIPRO FACTORY
                         ANTHARASANAHALLI, NH-4,
                         TUMKUR.
                                                                   ...APPELLANT

                                (BY SRI D.S.MALIPATIL, ADVOCATE)
                   AND:

                   1.    SRI R. JAYAMMA
                         W/O. LATE ARAVANNA
                         AGED ABOUT 76 YEARS

Digitally signed   2.    SRI A. MANJUNATH
by SHARANYA T
Location: HIGH           S/O. LATE ARAVANNA
COURT OF                 AGED ABOUT 42 YEARS
KARNATAKA

                         BOTH ARE RESIDING AT
                         NO.3949/177, SIRA GATE
                         TUMKUR CITY-572 101.
                                                             ...RESPONDENTS

                   (BY SRI SUDHINDRA MURTHY V., ADVOCATE FOR R1 AND R2)

                        THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
                   THE JUDGMENT AND DECREE DATED 15.12.2016 PASSED IN
                   R.A.113/2011 ON THE FILE OF THE II ADDL. DISTRICT AND
                   SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND
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                                            NC: 2023:KHC:32575
                                           RSA No. 290 of 2018




CONFIRMING THE JUDGMENT AND DECREE DATED 26.03.2011
PASSED IN O.S.NO.169/2003, ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND CJM., TUMAKURU.

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

                          JUDGMENT

Learned counsel for the respondents has furnished copy

of objection filed for I.A.No.2/2018 on the learned counsel for

the appellant and filed the same before this Court.

2. Heard the learned counsel for the appellant and

learned counsel for the respondents on I.A.No.2/2018. There is

a delay of 322 days in filing the appeal. The appeal is filed

against the concurrent finding of the Trial Court and the First

Appellate Court.

3. Learned counsel for the respondents brought to

notice of this Court that though the appellant is represented

through counsel, he has not filed any written statement before

the Trial Court and also not cross-examined the plaintiffs.

Apart from that, the appellant was having knowledge about the

judgment and decree of the Trial Court as well as the First

Appellate Court.

NC: 2023:KHC:32575 RSA No. 290 of 2018

4. Learned counsel for the respondents further

submits that in the affidavit filed in support of the application

for condonation of delay, the appellant has assigned the reason

that he was suffering from viral fever and backache and except

these two reasons, no other reasons are assigned and also with

regard to the ailment is concerned, no document is placed

before the Court to substantiate the fact that he was prevented

from filing the appeal and merely because he was suffering

from viral fever and backache, there cannot be delay of 322

days. The counsel further submits that this appeal was filed in

2018 and judgment and decree was passed on 26.03.2011.

Hence, it is rightly objected in the written statement that viral

fever and backache does not prevent any person from filing the

appeal and even, the appellant has not contested the matter

when the suit was filed for the relief of partition and this is the

suit of the year 2003 and the regular appeal is of the year 2011

and the parties are before the Court almost for 20 years for the

relief of partition. Hence, there is no ground to condone the

delay of 322 days in filing the appeal and no satisfactory

reasons are assigned to condone the inordinate delay of 322

days in filing the appeal and the appellant has to explain each

NC: 2023:KHC:32575 RSA No. 290 of 2018

day's delay and taking note of the fact that the appellant has

not contested the matter throughout before the Trial Court,

I.A.No.2/2018 is dismissed. Consequently, the appeal is also

dismissed.

Sd/-

JUDGE

ST