Karnataka High Court
Bhaganna And Ors vs Gurappa on 5 April, 2024
-1-
NC: 2024:KHC-K:2846
RSA No. 200404 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO.200404 OF 2023 (INJ)
BETWEEN:
1. BHAGANNA S/O GURANNA BIRADAR
AGE: 48 YEARS, OCC: AGRICULTURE.
2. SIDDARAM S/O GURANNA BIRADAR
AGE: 46 YEARS, OCC: AGRICULTURE.
3. BHAGAMMA W/O GURANNA BIRADAR
AGE: 60 YEARS OCC: AGRICULTURE.
ALL ARE R/O: BAMMANALLI,
TQ: SINDAGI, DIST: VIJAYAPURA-586128.
...APPELLANTS
(BY SRI. B. BHIMASHANKAR, AND
SRI. PRADEEP KUMAR, ADVOCATES)
Digitally signed
by RAMESH
MATHAPATI AND:
Location: High
Court of
Karnataka GURAPPA
S/O ANNAPPA BIRADAR @ BALAPPAGOLA
AGE: 70 YEARS, OCC: AGRICULTURE
R/O: BAMMANALLI, TQ: SINDAGI,
NOW @ CHANDAKAVATHE, TQ: SINDAGI
DIST: VIJAYAPURA-586128.
...RESPONDENT
(NOTICE IS HELD SUFFICIENT)
-2-
NC: 2024:KHC-K:2846
RSA No. 200404 of 2023
THIS RSA IS FILED U/O XLII RULE 2 R/W SECTION 100
OF THE CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 06TH DAY OF OCTOBER 2023 PASSED BY SENIOR CIVIL
JUDGE AND JMFC SINDAGI ON INTERIM APPLICATION FOR
CONDONATION OF DELAY UNDER SECTION 5 LIMITATION ACT
1963 IN R.A. NO.64 OF 2022 AND REMIND BACK THE SUIT FOR
FRESH CONSIDERATION ON THE MERITS OF THE SUIT, TO
MEET THE ENDS OF JUSTICE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have preferred this appeal against the
impugned order dated 06.10.2023 passed on IA.No.I filed
under Section 5 of the Limitation Act, seeking to condone
the delay of 2 months 5 days in filing the appeal in
R.A.No.64/2022.
2. Heard the learned counsel for the appellants.
Despite service of notice, respondent remained absent and
unrepresented. Hence, service of notice to respondent is
held sufficient.
3. Learned counsel for the appellants submits that
the appellate Court ought to have taken the liberal
approach while considering the delay application for just
NC: 2024:KHC-K:2846
58 days that too in the absence of objections. That the law
is settled that meritorious matter should not be thrown out
for the reason of delay. He further submits that the
appellate Court should have adopted justice oriented
approach rather than the iron cast approach while dealing
with application for condonation of delay and the
appellants have shown sufficient reasons to condone the
delay by filing affidavit which has not been denied by the
other side by filing objections. On these grounds sought
for allowing of the appeal.
4. A perusal of copy of the application filed under
Order 41 Rule 3A of CPC under Section 5 of the Limitation
Act, reveals that the present appellants had filed an
application to condone the delay of 2 months 5 days in
filing the appeal before the appellate Court. This
application is supported with the affidavit of Sri.Baganna
S/o: Guranna Biradar, wherein he has clearly stated with
regard to the delay in filing the appeal. PW.1 has also
adduced is oral evidence. The respondent has not filed any
NC: 2024:KHC-K:2846
objections to the said application and even he has not
adduced any evidence to discard the evidence of PW.1.
The appellate Court has dismissed the application only on
the ground that there are no documents to show that the
mother of appellants was hospitalized. When the
respondent has not filed any objections to the said
application, the oral evidence of PW.1 is sufficient to come
to the conclusion that the appellants have made out
sufficient cause to condone the delay of only just 2 months
5 days in filing the appeal.
5. Considering the evidence of PW.1, I am of the
considered opinion that the appellants have made out
sufficient cause to condone the delay in preferring the
appeal before the appellate Court. Accordingly, I proceed
to pass the following;
ORDER
(a) The order dated 06.10.2023 passed on IA.No.I by
the Senior Civil Judge and JMFC, Sindagi, is
NC: 2024:KHC-K:2846
hereby set aside. Consequently, IA.No.I filed by
the appellants under Section 5 of the Limitation
Act, is allowed by condoning the delay of only 2
months 5 days in preferring the appeal.
(b) The appellate Court shall proceed with the case in
accordance with law.
(c) Registry is directed to send the copy of this order
to the concerned appellate Court along with Trial
Court records.
Sd/-
JUDGE
MSR
