Karnataka High Court
Maleppa S/O Eranna vs Smt. Lingamma on 29 February, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:4681
WP No. 107415 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 107415 OF 2023 (GM-CPC)
BETWEEN:
MALEPPA S/O. ERANNA,
AGE: 65 YEARS, OCC: AGRICULTURIST,
R/O: KUDITHINI VILLAGE,
TALUK AND DISTRICT: BALLARI -583101.
...PETITIONER
(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
1. SMT. LINGAMMA W/O. HOSAGERAPPA,
AGE: 74 YEARS, OCC: AGRICULTURIST,
BHARATHI
HM R/O: KUDITHINI VILLAGE,
TALUK AND DISTRICT: BALLARI -583101.
Digitally signed by
BHARATHI H M
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.05
14:54:25 +0530
2. JAMBANNA S/O. THIMMAPPA,
AGE: 74 YEARS, OCC: AGRICULTURIST,
R/O: KUDITHINI VILLAGE,
TALUK AND DISTRICT: BALLARI -583101.
3. BASAVARAJA S/O. HOSAGERAPPA,
AGE: 53 YEARS, OCC: AGRICULTURIST,
R/O: KUDITHINI VILLAGE,
TALUK AND DISTRICT: BALLARI -583101.
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WP No. 107415 of 2023
4. THIMMAPPA S/O. HOSAGERAPPA,
AGE: 50 YEARS, OCC: AGRICULTURIST,
R/O: KUDITHINI VILLAGE,
TALUK AND DISTRICT: BALLARI -583101.
5. HATTI PAMPAPATHI
S/O. HATTI THIMMAPPA HOSAGERAPPA,
AGE: 53 YEARS, OCC: AGRICULTURIST,
R/O: KUDITHINI VILLAGE,
TALUK AND DISTRICT: BALLARI -583101.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI QUASHING THE ORDER DATED 14-01-
2022 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND CJM
BALLARI IN MISC. 51/2019 WHICH IS PRODUCED AT
ANNEXURE-E AND ORDER DATED 30-05-2023 PASSED BY THE
I ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI IN MISC.
APPEAL NO. 30/2022 WHICH IS PRODUCED AT ANNEXURE-G
AND CONSEQUENTLY ALLOW THE I.A NO.1 FOR CONDONATION
OF DELAY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 107415 of 2023
ORDER
This writ petition is filed seeking for following reliefs:
Issue a writ of certiorari quashing the order dated
14-01-2022 passed by the Prl. Senior Civil Judge and
CJM Ballari in Misc. 51/2019 which is produced at
Annexure-E and order dated 30-05-2023 passed by
the I Addl. District and Sessions Judge, Ballari in
Misc. Appeal no. 30/2022 which is produced at
Annexure-G and consequently allow the I.A No.1 for
condonation of delay.
2. Sri B. Mallikarjunswamy B.Hiremath, learned
counsel for petitioner submitted that respondents herein had
filed O.S.no.129/1997 before Principal, Senior Civil Judge,
(Sr.Dn.) and CJM, Bellary, for declaration of title of plaintiffs as
well as defendants no.2 to 10 in respect of suit schedule
property. It was submitted, petitioner was defendant no.1 in
said suit and had not filed any written statement. On
13.11.2000, said suit came to be decreed. Upon coming to
know of judgment, petitioner filed a review petition on
17.06.2019 along with application for condonation of delay as
per Annexures-B and C. Petitioner also led evidence as per
Annexure-D. However, petition came to be dismissed on
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14.01.2022, as a consequence of rejection of application for
condonation of delay by order at Annexure-E.
3. Against said order, petitioner preferred
Misc.A.no.30/2022 before I Additional District and Sessions
Judge, Ballari. Under impugned order, said appeal was
dismissed as not maintainable. Assailing same, learned counsel
for petitioner submitted that petition at Annexure B though
described as a review petition, was in fact an application for
recalling judgment and decree on ground of fraud, which was
dismissed on ground of delay. While rejecting same, trial Court
had not given any findings on whether there was just cause for
petitioner's non appearance in suit. It was submitted against an
order rejecting application for condonation of delay, an appeal
would lie under Order XLIII, Rule 1(d) of CPC. Therefore,
dismissal of appeal under order at Annexure-G would be
technically erroneous and sought relief.
4. Heard learned counsel for petitioner and perused
writ petition record.
5. From perusal of judgment and decree at Annexure-
A, it is seen that petitioner hearin was arrayed as defendant
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no.1. Suit apparently proceeded, since petitioner, despite
service of notice, did not contest. Suit ended in decree
declaring plaintiffs and defendants no.2 to 10 as absolute
owners of plaint 'B' schedule property and holding sale by
defendant no.1 in favour of defendant no.11 dated 26.08.1994
as not binding on them. Decree for partition was also granted
and defendants no.1 and 11 were perpetually restrained from
disturbing peaceful possession and enjoyment of plaintiffs and
defendants. Said judgment and decree was passed on
13.11.2000. Long thereafter, on 17.06.2019, petitioner-
defendant no.1 filed petition as per Annexure-B under Order
47, Rule 1 of CPC, praying to review/recall judgment and
decree passed in OS no.129/1997 on 29.11.2000 and to
confirm possession of petitioner over petition schedule
property. Since petition was belated by about 19 years, IA I
was filed under Section 5 of Limitation Act for condonation. In
affidavit, very same averments as in petition were made. Even
in deposition, petitioner did not say any further. Same was
examined by trial Court, and impressed it rejected IA no.I. Main
reason assigned was though there was 19 years delay in filing
application, there was no proper explanation. Indeed trial Court
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has stated that each day delay was required to be explained.
Against said order, petitioner preferred appeal. Same is
rejected as not maintainable under Order at Annexure-B.
6. Regardless of question of maintainability of appeal
against order of rejection of application for condonation of
delay, perusal of petition filed by petitioner herein as per
Annexure-B, as well as contents of affidavit filed in support of
application for condonation of delay, only averments made are
as follows:-
"3. The respondents suppressing these
facts and to defeat my claim alleged to have
executed a power of attorney infavour of
respondent no. 5. They suppressing all the
material facts filed a suit O.S No: 129/1997
for partition and delivery of their alleged
1/3rd share. Though suit was contested the
fraud was not brought to the notice of the
court. Further the respondents had never
sought for possession of the property as it is
with me. The respondents were also aware of
the agreement executed by Hosagerappa,
respondent nos. 3 & 4 and possession being
delivered. I, having come to know about the
fraud recently is moving the application for
reviewing the judgment & decree dated
29-11-2000.
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4. I obtained certified copies and
found out the fraud played by the
respondents on the petitioner as well as on
the court. I continue to be in possession of
the property and the respondents have not
taken any steps in furtherance of decree in
O.S No: 129/1997. This fact clearly
indicates that the respondents are not in
possession of the property and cannot take
shelter under the alleged decree."
7. In said assertion, it is seen that petitioner admits
that suit was 'contested' and 'fraud alleged' was not brought to
notice of Court. Firstly, nothing prevented petitioner from
asserting his possession. Straight away, without disclosing how
and under what circumstances and from whom petitioner
became aware of impugned judgment and decree, straight
away it is asserted that after coming to know, petitioner filed
application for review alleging fraud.
8. Even in case, petition at Annexure-B were to be
considered as an application for recall of judgment and decree,
cause shown as above, would hardly be sufficient nor would
constitute just and reasonable explanation for delay. Though
each day's delay is not required to be explained as held by
Hon'ble Supreme Court, it is not quantum of delay, but, reason,
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in instant case, reason is, if not absent, unacceptable. Under
circumstances, regardless of question of maintainability of
appeal, there are no just grounds for entertaining writ petition.
Hence, writ petition stands dismissed.
Sd/-
JUDGE
VMB
