Karnataka High Court
Smt Lakshmamma vs Smt Anusuya on 25 September, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:34921
RSA No. 1072 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1072 OF 2019 (PAR)
BETWEEN:
1. SMT. LAKSHMAMMA
W/O RAMACHANDRA
AGED ABOUT 50 YEARS
2. SMT. SHWETHA
D/O RAMACHANDRA
W/O CHANDRA
AGED ABOUT 35 YEARS
R/O HALE VOKKALIGARABIDI,
MADDUR TALUK-571428.
3. SMITHA
D/O RAMACHANDRA
Digitally signed
by SHARANYA T AGED ABOUT 33 YEARS
Location: HIGH
COURT OF 4. MANJU
KARNATAKA
S/O RAMACHANDRA
AGED ABOUT 30 YEARS
APPELLENTS NOS.1, 3 AND 4 ARE
R/AT UMMADAHALLI VILLAGE,
KASABA HOBLI, MANDYA TALUK
AND DISTRICT-571 401.
...APPELLANTS
(BY SRI HALESHA R.G., ADVOCATE)
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RSA No. 1072 of 2019
AND:
1. SMT. ANUSUYA
D/O LATE BOREGOWDA
W/O NANJEGOWDA
AGED ABOUT 67 EYARS
LAKSMEGOWDANADODDI
VILLAGE, C.A. KERE HOBLI
MADDUR TALUK-571428.
2. SMT. B.NAGAMMA
W/O PUTTARAJU
D/O LATE PATEL BORAPPA
AGED ABOUT 60 YEARS
R/O BELKERE VILLAGE
CHANNAPATTANA TALUK
RAMANAGARA DISTRICT-571511.
3. SMT. B.CHANDRAMMA
W/O LATE C NARAYANA
D/O LATE PATEL BORAPPA
AGED ABOUT 56 EYARS
R/O NALABANDWADI
OLD TOWN,
MANDYA CITY-571401.
4. SRI B. SIDDARAJU
S/O PATEL BORAPPA
AGED ABOUT 62 YEARS
R/O 1ST CROSS, M.V.NAGAR
MADDUR TOWN-571428.
5. SRI RAMACHANDRA
S/O PATEL BORAPPA
AGED ABOUT 59 YEARS
R/O UMMADAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK-571401.
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RSA No. 1072 of 2019
6. SMT. B. SAROJAMMA
D/O LATE PATEL BORAPPA
W/O ADISHAKTHI RAMANNA
AGED ABOUT 29 YEARS
R/O DESHAHALLI VILLAGE
MADDUR TALUK-571428.
7. SMT. PRABHAMANI
D/O LATE PATEL BORAPPA
AGED ABOUT 64 EYARS
R/O UMMADAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK-571401.
8. NINGARAJU
S/O BORAIAH @ BOKKEGOWDA
AGED ABOUT 49 YEARS
R/O UMMADAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK-571401.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.02.2019
PASSED IN R.A.NO.59/2018 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA,
DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 28.06.2016 PASSED IN O.S.NO.18/2009
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
CJM, MANDYA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1072 of 2019
JUDGMENT
Heard the learned counsel for appellants.
2. This appeal is filed challenging the
rejection of the application filed under Order 41 Rule 3-A
R/w Section 151 of CPC and Section 5 of Limitation Act.
There was a delay of 742 days in filing the appeal.
3. In the appeal i.e., RA No.59/2018 in order
to condone the delay, the appellant has examined as PW1
and the reason assigned in the application is that the
counsel did not informed the development of the case that
she was subjected to cross examination and in the cross
examination, she categorically admitted that she is having
mobile and her children are also having mobile and they
used to contact the advocate through mobile and also
admitted that the written statement was filed in
O.S.No.18/2009, the same was confronted and marked as
Ex.R1 and also confronted the application filed before the
Trial Court to include the more property and the copy of
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RSA No. 1072 of 2019
the said application is also confronted which is marked as
Ex.R2 and also affidavit was filed and it is marked as
Ex.R3.
4. Further PW1 admitted that on 30.01.2016
she gave her affidavit of evidence in O.S.No.18/2009 and
also admitted that respondent Nos.1 to 3 have filed FDP
proceedings in FDP No.20/2016 and in the said
proceedings also she has received the Court notice. But,
she has denied that she has received the Court notice,
further it is suggested to her that on 29.11.2016 in the
FDP proceedings she appeared before the Court and
signed the order sheet and she sought time to engage the
counsel and the copy of order sheet of FDP proceedings is
marked as Ex.R4 and also notice issued by her on behalf
and also in RA No.1/2018 on her behalf which are marked
as Ex.R5 to Ex.R7. She has admitted that she appeared
before the Court on 05.03.2018 and Vakalath is also
marked as Ex.R8.
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4. Having taken note of these materials and
the admissions given by the PW1 before the appellate
Court, when she was examined on I.A. The First Appellate
Court comes to the conclusion that having all the
knowledge about the proceedings and also appeared
before the Trial Court in FDP proceedings and also signed
the order sheet and having entire knowledge about even
the original suit proceedings as well as FDP proceedings,
inspite of it also there was a delay of 742 days and the
same was not properly explained by the appellants.
5. Hence, the First Appellate Court has not
committed any error in appreciating the reasons assigned
in the application and also given admission at each and
every stage he used to participate in the proceedings. The
appellant has participated in the proceedings of the Trial
Court as well as in the FDP proceedings. Hence, no
reasons are made out to condone the delay of 742 days.
Unless each day has been explained by the appellants,
question of condoning the delay does not arise. The
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RSA No. 1072 of 2019
records are also disclose that the suit was disposed of on
28th day of July 2016 and the appeal was filed in year
2018 i.e., almost after 2 years. Hence, I do not find any
ground to set-aside the order of the First Appellate Court.
Consequently the R.S.A is dismissed.
Sd/-
JUDGE
RHS
