Karnataka High Court
Smt Nagaveni vs Late Gurumoorthy Chaithra on 2 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 814 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 814 OF 2023 (PAR)
BETWEEN:
1. SMT. NAGAVENI
W/O LATE NAGESHWARA CHATHRA
AGED ABOUT 69 YEARS
2. SRI. SHANKARNARAYANA CHATHRA
S/O LATE NAGESHWARA CHATHRA
AGED ABOUT 48 YEARS
3. SRI. VIJAYENDRA CHATHRA
S/O. LATE NAGESHWARA CHATHRA
AGED ABOUT 45 YEARS
4. SMT. SHAILAJA
D/O. LATE NAGESHWARA CHATHRA
AGED ABOUT 42 YEARS,
Digitally
signed by ALL ARE RESIDENTS OF
SHAKAMBARI
KALEKODU, HALLIHOLE VILLAGE AND POST
Location:
HIGH COURT KUNDAPURA TALUK
OF UDUPI 576 201.
KARNATAKA
...APPELLANTS
(BY SRI. AJITH A SHETTY., ADVOCATE)
AND:
1. LATE GURUMOORTHY CHAITHRA
SINCE DECEASED BY HIS LR'S
1(a) SMT. SHAILA
W/O LATE GURUMOORTHY CHATHRA
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RSA No. 814 of 2023
AGED ABOUT 53 YEARS
1(b) SMT. SUSHMA
D/O LATE GURUMOORTHY CHATHRA
AGED ABOUT 31 YEARS
1(c) SMT. GREESHMA
D/O LATE GURUMOORTHY CHATHRA
AGED ABOUT 27 YEARS
2. SRI. CHANDRASHEKAR CHATHRA
S/O LATE DEVARAYA CHATHRA
AGED ABOUT 71 YEARS
3. SRI. SUBRAMANYA CHATHRA
S/O LATE DEVARAYA CHATHRA
AGED ABOUT 56 YEARS
4. SRI. SRIDHAR CHATHRA
S/O LATE DEVARAYA CHATHRA
AGED ABOUT 53 YEARS
RESPONDENTS NO. 1 TO 4 ARE
RESIDENTS OF KALEKODU
HALLIHOLE VILLAGE AND POST
KUNDAPURA TALUK
UDUPI 576 201.
5. SRI. ARUNA KUMAR
S/O. CHANDRASHEKAR CHATHRA
AGED ABOUT 39 YEARS
KALEKODU, HALLIHOLE VILLAGE AND POST
KUNDAPURA TALUK
UDUPI 576 201.
6. SMT. RAMADEVI
W/O PARAMESHWARI KUJITHAYA
AGED ABOUT 67 YEARS
7. SMT. PUSHAVENI
W/O SRINIVASA RAO
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RSA No. 814 of 2023
AGED ABOUT 51 YEARS
RESPONDENTS 6 AND 7 ARE
RESIDENTS OF SIDDAPURA VILLAGE AND POST
KUNDAPUR TALUK
UDUPI 576 201.
8. SRI. LAXMINARAYANA CHATHRA
S/O LATE DEVARAYA CHATHRA
AGED ABOUT 75 YEARS
RESIDING AT ABHINAV
BRAMHAGIRI, BEHIND LIONS BHAVAN
UDUPI TOWN 576 101.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 02.01.2022
PASSED IN RA NO.21/2020 ON THE FILE OF THE SENIOR CIVIL
JUDGE, KUNDAPURA. DISMISSING THE APPEAL AND FILED
AGAINST THE JUDGMENT AND DECREE DATED 02.04.2019
PASSED IN FDP NO.14/1992 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, KUNDAPURA.
THIS APPEAL COMING ON FOR ORDERS THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the legal representatives of original
defendant No.2 -Sri Nageshwara Chatra, aggrieved by the
order dated 02.04.2019 passed in FDP No.14/1992 on the file
of the Principal Civil Judge and JMFC., Kundapura, which order
was carried in appeal by the appellants herein in
R.A.No.21/2020 on the file of the Senior Civil Judge at
Kundapura (First Appellate Court), which by its order dated
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02.01.2022 dismissed the same on the ground of same having
been barred by limitation.
2. Brief facts leading up to filing of the present appeal
are that:
A suit in O.S.No.225/1978 had been filed seeking
partition and separate possession of schedule 'A' to 'E'
properties consisting of various items of immovable properties.
The said suit was decreed by judgment and decree dated
23.08.1982 directing the schedule properties to be divided into
six equal shares and to be allotted to each of the plaintiffs and
the defendants.
3. Final decree proceedings in FDP No.14/1992 was
initiated. Tahsildar was appointed as Court Commissioner under
Order XX Rule 18 r/w Section 54 of CPC by the FDP Court, who
has apparently filed the report dividing the schedule properties
into 6 equal shares. The FDP Court taking note of the fact that
except respondent No.6 no other respondents had filed any
objection and further considering the rival claims made by the
parties, exercising its discretionary jurisdiction, allotted the
shares as detailed in the said proceedings and consequently,
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closed the Final decree proceedings. Aggrieved by the same,
the appellants who are the wife and children of Sri Nageshwara
Chatra filed a regular appeal in R.A.No.21/2020. There was a
delay of 369 days in filing the said appeal, as such, an
application was also filed seeking condonation of delay in filing
the said appeal. The First Appellate Court did not find the
reasons assigned in the affidavit accompanying the application
seeking condonation of delay, as such, dismissed the
application and consequently dismissed the appeal having
barred by limitation. Being aggrieved by the same, the
appellants are before this Court.
4. Sri Ajith A.Shetty, the learned counsel for the
appellant reiterating the grounds urged in the memorandum of
appeal submitted that the trial Court and First Appellate Court
have ignored the essential feature of the properties while
allotting the shares which are per se inequitable. Elaborating
the said submission the learned counsel submits that the trial
Court has not taken into consideration the location, nature of
the soil and the value of the properties and also did not
consider that the said properties were spread across different
places. That the appellants have been allotted their share in a
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place called Kollur, whereas other members of the family have
been allotted properties in a place called Kundapura, which is
more commercially viable place in terms of its location. That
allotment of shares without consideration of these aspects of
the matter has adversely affected the interest of the
appellants. Thus, he submits that this inequitable distribution
of shares needs to be redressed.
5. He submits that since the First Appellate Court
being final fact finding Court has dismissed the appeal on the
technical grounds of the same having been barred by limitation.
An opportunity be provided to the appellants to address their
grievance. Thus, he submits that the dismissal of the appeal
by the First Appellate Court without considering the contention
urged by the appellants has given rise to substantial question
of law requiring consideration in the hands of this Court.
6. Heard. Perused the records.
7. This litigation is pending since 1978. The Final
decree proceedings itself was initiated in the year 1992 and has
been closed in the year 2019. The Final Decree proceedings
itself has taken 17 long years. Paragraph No.3 of the FDP
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proceedings reveal that none of the respondents including the
appellant herein have chosen to file any statement of
objections to the main petition. The FDP Court had appointed
the Tahsildar as Court Commissioner under Section 54 of CPC,
as stated at paragraph No.10 of the order, has filed two
reports, one dated 11.01.2005 and another 31.01.2006. The
Tahsildar has identified the suit properties, divided them into
six equal shares, taking into consideration the fertility of the
soil, irrigation facility, developments, convenience, locality,
income etc., The said paragraph further reveal that except
respondent No.6 none of the parties had raised any objection to
the Commissioner's report. Even the said objection raised by
respondent No.6 has found to be one without any substance by
the trial Court. As such, the FDP Court accepted the
Commissioner report. At paragraph No. 11 of the said order,
the FDP Court had noted that the parties had filed separate
memos in which they had made claims and counter claims,
which were mutually inconsistent and were over lapped.
8. Taking this into consideration, the trial Court opted
to divide the suit properties using its discretionary jurisdiction.
Accordingly, proceeded to allot the shares as detailed at
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paragraph No.11 of the said order. The FDP Court taking into
consideration the two reports filed by the Tahsildar, closed the
Final decree proceedings. Apparently, aggrieved by the closure
of the said FDP proceedings, the appellants herein filed a
Regular Appeal before the First Appellate Court. There was a
delay of 369 days in filing the said appeal.
9. Learned counsel for the appellant referred to the
application filed under Order XLI R 3(A) by the appellants
before the First Appellate Court, which is numbered I.A.No.2
seeking condonation of delay. The affidavit is sworn to by one
Vijayendra Chatra, who is the 3rd appellant before this Court.
Paragraph No. 2 of the said affidavit states that he has been
diligently continuing the litigation which has been pending for
over 45 years. He says that due to the long duration of the
litigation, it is difficult for him to keep the track of the said
process throughout his life that, he is residing at far away place
in a rural area without any proper road or access or
communication and it was impossible for him to keep track of
the litigation in Kundapura town.
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10. He further states that during the fag end of February
2020, his Advocate had intimated him about passing of the final
decree and also told him that his office had sent him a letter
however, he did not receive any such letter as the postal
system was not working satisfactorily in the said rural area. He
further states that his Advocate had obtained copies of the said
proceedings immediately and explained the contents to him
that he was shocked with the order and that the said order was
passed upon the report prepared at the instance of the
respondents who were behind the said report. As such, he
requested his advocate to file an appeal against the final decree
order. Due to which, there was a delay.
11. Except the above, there are no other reasons
assigned in the affidavit. The First Appellate Court not being
satisfied with the cause shown in the application declined to
condone the delay. The First Appellate Court has referred to
several judgments of the Apex Court with regard to sufficiency
of the cause for the purpose of condoning the delay. The First
Appellate Court has found that the appellants were having the
knowledge of pendency of the FDP proceedings and had thus,
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kept quite without taking any effective steps in challenging the
same. As no reasons were explained for non-initiation of any
action by the appellant within the time stipulated for the
purpose of filing an appeal or any explanation with regard to
further delay in filing the appeal, dismissed the application,
consequently, dismissed the appeal.
12. It is settled position of law that while considering
the application for condonation of delay, a liberal approach has
to be adopted. However, the concept of liberal approach
cannot be extended in respect of a litigant who despite having
knowledge of the order passed against him has kept quite
without taking any steps whatsoever. In the instant case, it is
not that the appellants were not aware of the pendency of the
proceedings, particularly, the appeal proceedings. As already
noted at paragraph No. 2 of the affidavit, the appellant himself
has described that the proceedings having been pending for
over 45 years. The reason assigned is that the long pendency
of the proceedings has made it difficult for him to keep track of
the proceedings. It is not his case that he was not aware of the
passing of the final decree proceedings. No whisper of any
nature whatsoever is made in the affidavit accompanying the
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application with regard to he not being able to take steps in
filing the appeal within the time stipulated of filing of the appeal
or even thereafter. As such, no error or fault can be found in
the reasons assigned by the first appellate Court while declining
to condone the delay. In the overall facts situation of the
matter, even considering the contents of the order of the FDP
wherein it is noted that except respondent No.6 none had filed
any statement of objections, there appears to be no error or
illegality committed by the FDP Court in closing the Final
Decree Proceedings. Similarly no error can be found in the First
Appellate Court rejecting the application for condonation of
delay and dismissing the appeal. No substantial question of law
would arise for consideration.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
PSJ
