Karnataka High Court
Sri. Ananda Kumar vs Sri. Seenappa on 6 August, 2024
-1-
NC: 2024:KHC:31115
RSA No. 1762 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1762 OF 2018
BETWEEN:
SRI. ANANDA KUMAR
S/O LATE NANJUNDAPPA,
AGED ABOUT 48 YEARS,
R/AT CHOLAGATTA VILLAGE,
KASABA HOBLI,
KOLAR TALUK-560 003.
...APPELLANT
(BY SRI. VENUGOPAL M S., ADVOCATE)
AND:
1. SRI. SEENAPPA
S/O ANKANDALLI NARAYANAPPA,
Digitally signed by
ARUNKUMAR M S AGED ABOUT 77 YEARS,
Location: High R/OF CHOLAGATTA VILLAGE,
Court of Karnataka
KASABA HOBLI,
KOLAR TALUK-563101.
2. SAROJAMMA
SINCE DECEASED REP. BY LRS.
2(a). SMT. S. SHARADA
W/O RAMESHA
AGED ABOUT 48 YEARS
-2-
NC: 2024:KHC:31115
RSA No. 1762 of 2018
2(b). SRI. S. MAHESHA
S/O SETTAPPA
AGED ABOUT 46 YEARS
BOTH R-2(a) AND R-2(b) ARE
RESIDING AT
VEERABHADRASWAMY NILAYA,
CHOWDESHWARI NAGARA,
OPP. INDIAN PUBLIC SCHOOL,
TEKAL ROAD,
KOLAR -563 101.
...RESPONDENTS
(BY SRI. VENKATA REDDY C.M., ADVOCATE FOR
R1 & R2 (a & b))
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
ORDER DATED 11.07.2018 PASSED ON IA IN R.A. NO.149 OF
2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
KOLAR, REJECTING THE I.A. FILED UNDER SECTION 5 OF
LIMITATION ACT AND CONSEQUENTLY DISMISSING THE
REGULAR APPEAL AND FILED AGAINST THE JUDGEMENT AND
DECREE DATED 28.03.2016 PASSED IN O.S.NO.56 OF 2009
ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC.,
KOLAR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
-3-
NC: 2024:KHC:31115
RSA No. 1762 of 2018
ORAL JUDGMENT
This appeal is filed by the plaintiff, challenging the
judgment and decree dated 11.07.2018 passed in RA
No.149 of 2016 on the file of the Principal Senior Civil
Judge, Kolar, dismissing the appeal and confirming the
judgment and decree dated 28.03.2016 passed in OS
No.56 of 2009 on the file of the I Additional Civil Judge
and JMFC, Kolar, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. Relevant facts for the adjudication of the case
as averred in the plaint are that, the plaintiff is the owner
in possession of the suit schedule property. It is further
averred that, grandfather of the plaintiff-Papanna, S/o.
Sethappa had purchased the suit schedule property as per
registered Sale Deed dated 25.07.1965 and thereafter, the
suit schedule property was fallen to the share of the father
NC: 2024:KHC:31115
of the plaintiff-Nanjundappa, Veerabhadrappa and
defendant No.2 (Seetappa). Thereafter, Veerabhadrappa
and defendant No.2 (Seetappa) have released the suit
schedule property in favour of the father of the plaintiff as
per Release Deed dated 04.08.1993. After the death of the
father of plaintiff, the plaintiff continued to be in
possession of the suit schedule property and therefore, the
case of the plaintiff is that, the defendant No.1, without
any interest in respect of the suit schedule property, is
interfering with the suit schedule property and as such,
the plaintiff has filed OS No.56 of 2009, seeking relief of
permanent injunction restraining the defendants from
interfering with the suit schedule property.
4. After service of summons, defendant No.1
entered appearance and filed detailed written statement
denying the averments made in the plaint. Defendant
Nos.2 and 3 were remained absent. Hence, they were
placed ex-parte. It is the case of the defendant No.1 that,
the defendant No.1 is in possession of the suit schedule
NC: 2024:KHC:31115
property as Smt. Chodamma, W/o. Kempanna was owner
of the suit schedule property and she has sold the same to
one Sarojamma, D/o. R.Rangappa, as per registered Sale
Deed dated 04.08.1999 and thereafter, the Sarojamma
and her children have sold the suit schedule property in
favour of defendant No.1 as per registered Sale Deed
dated 03.11.2008 and therefore, it is the contention of the
defendant No.1 that, the defendant No.1 is owner of the
suit schedule property. It is also contended by the
defendant No.1 that, he has filed OS No. 37/2009 before
the Principal Civil Judge (Junior Division) Kolar, seeking
permanent injunction against the plaintiff and same is
pending consideration before the competent Civil Court.
Accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial
Court has formulated the issues for its consideration.
6. In order to establish their case, plaintiff
examined himself as PW1 and produced 06 documents as
Exs.P1 to P6. On the other hand, defendant No.1
NC: 2024:KHC:31115
examined himself as DW1 and no documents were marked
on behalf of the defendants.
7. The trial Court, after considering the material
on record, by its judgment and decree dated 28.03.2016
dismissed the suit of the plaintiff and being aggrieved by
the same, the plaintiff has preferred Regular Appeal in
RA.No.149 of 2016 on the file of First Appellate Court. As
there was delay of 120 days of filing the appeal
plaintiff/appellant has filed application in IA No.1 under
Section 5 of the Limitation Act, seeking condonation of
delay. The said appeal was resisted by the respondents
therein. The First Appellate Court, after considering
material on record, by its order dated 11.07.2018
dismissed the application filed under Section 5 of
Limitation Act, consequently, the appeal came to be
dismissed. Feeling aggrieved by the same, the plaintiff has
preferred this Regular Second Appeal under Section 100 of
CPC.
NC: 2024:KHC:31115
8. Having taken note of the material on record,
this court has formulated the following substantial
questions of law for consideration.
i) Whether the First Appellate Court is justified
in ignoring Exs.P1 to P8, seeking reasons for
condoning the delay in filing the appeal
belatedly ?
ii) What order ?
9. I have heard Sri.Venugopal M.S., learned
counsel for the appellant and Sri Venkata Reddy, learned
counsel for the respondents.
10. Sri. Venugopal M.S., learned counsel for the
plaintiff/appellant contended that, the plaintiff has proved
before the First Appellate Court with regard to the reasons
for delay in filing the appeal and that apart, the First
Appellate Court being the last court for re-appreciating the
factual aspects on record, ought to have liberally
considered the application filed by the plaintiff/appellant,
NC: 2024:KHC:31115
seeking condonation of delay of 120 days in filing the
appeal. Accordingly, sought for interference of this Court.
11. Per contra, Sri. Venkata Reddy, learned
counsel appearing for the respondents sought to justify
the impugned order passed by the First Appellate Court
and submitted that, no cogent reasons have been stated
for condoning the delay of 120 days in filing the appeal by
the plaintiff/appellant and therefore, sought for dismissal
of the appeal.
12. Having taken note of the submission made by
the parties, I have carefully examined the finding recorded
by the First Appellate Court while rejecting the application
made by the plaintiff/appellant, seeking condonation of
delay. It is also not in dispute that the appellant/plaintiff
has produced 08 documents, particularly, Ex.P1-discharge
summary issued by ETCM Hospital, Kolar, wherein, it is
forthcoming that the appellant was inpatient and
thereafter, he had taken medical aid as out patient
regularly. Scanning report is produced at Ex.P8. In that
NC: 2024:KHC:31115
view of the matter, I am of the view that, the First
Appellate Court ought to have liberally considered the
application filed for condoning the delay of 120 days in
filing the appeal and therefore, I find force in the
submission made by the learned counsel appearing for the
appellant. Accordingly, the substantial question of law
framed in this appeal favours appellant/plaintiff. In the
result, I pass the following:
ORDER
i) Regular Second Appeal is allowed;
ii) Order dated 11.07.2018 passed in RA No.149
of 2016 on the file of the Principal Senior Civil
Judge, Kolar is set aside and matter is
remitted to the First Appellate Court for
consideration of the appeal on merits and
conclude the entire proceedings within an
outer limit of eight months from the date of
receipt of certified copy of this order.
- 10 -
NC: 2024:KHC:31115
iii) Since the parties are appeared through their
learned counsels and in order to avoid further
delay in the matter, the parties are directed
to appear before the First Appellate Court on
10.09.2024 at 11 am without waiting for
further notice in this regard and on their
appearance, the First Appellate Court is
directed to dispose of the same in terms of
the observations made above.
SD/-
(E.S.INDIRESH)
JUDGE
SB
