Karnataka High Court
Susheela vs Muddu Poojary Died on 3 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 1705 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1705 OF 2015 (PAR)
BETWEEN:
1. SUSHEELA
D/O LATE KRISHNAPPA KOTIAN
AGE 57 YEARS,
2. SUMATHI
D/O LATE KRISHNAPPA KOTIAN
AGE 56 YEARS,
3. CHANDRA
D/O LATE KRISHNAPPA KOTIAN
AGE 55 YEARS,
4. MOHANA
D/O LATE KRISHNAPPA KOTIAN
AGE 54 YEARS,
5. SUDHAKARA
SINCE DECEASED BY LR's
Digitally signed 5(a) DEVIKA S AMIN
by D/O LATE SUDHAKARA
NARAYANAPPA (AMENDED AS PER ORDER DATED 7.11.19)
LAKSHMAMMA
Location: HIGH 6. SULOCHANA
COURT OF D/O LATE KRISHNAPPA KOTIAN
KARNATAKA AGE 51 YEARS,
ALL ARE PERMANENT RESIDENTS OF
ADI UDUPI, NEAR MARKET YARD,
KODAVOORU VILLAGE,
UDUPI TALUK AND DISTRICT-576101
...APPELLANTS
(BY SRI. UDAYA HOLLA., SR. ADVOCATE FOR
SRI. B S PRASAD .,ADVOCATE)
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RSA No. 1705 of 2015
AND:
1. MUDDU POOJARY DIED
DEAD BY HIS LEGAL HEIRS AS
1(a) NARANAPPA POOJARY
1(b) GULABI POOJARTHY
1© SHANKARA POOJARY
1(d) APPI POOJARTHY
1(e) JAYANTHI POOJARTHY
1(f) BHASKARA POOJARY
1(g) SUNDARA POOJARY
1(h) GOPALA POOJARY
1(i) VANAJA POOJARTHY
1(j) RAJU POOJARY
ALL ARE RESIDING AT KAKKUNJE,
AMBAGILU POST, SANTHEKATTE,
SHIVALLI VILLAGE,
UDUPI TALUK-576101
2. SUNDARA
S/O LATE KRISHNAPPA POOJARY,
AGE 52 YEARS,
R/O NEAR MARKET YARD, ADI UDUPI,
KADAVOOR VILLAGE,
UDUPI TALUK AND DISTRICT-576101
3. BOODA POOJARY
S/O KOOSU POOJARTHI
AGE 72 YEARS,
4. BIDRI POOJARTHI
D/O KOOSU POOJARTHI
AGE 69 YEARS,
5. THANNERU POOJARTHI
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RSA No. 1705 of 2015
D/O KOOSU POOJARTHI
AGE 67 YEARS,
6. GIRIYA POOJARY
S/O KOOSU POOJARTHI
AGE 66 YEARS,
7. SUNDARI
D/O RANGU POOJARTHI
AGE 67 YEARS,
8. SHARADA
W/O RAGHU
AGE 49 YEARS,
9. MALLIKA
D/O LATE RAGHU
AGE 41 YEARS,
10. RAVI
S/O LATE RAGHU
AGE 39 YEARS,
11. NAYANA
D/O LATE RAGHU
AGE 37 YEARS,
12. RAGHU
S/O RAGHU POOJARTHI
AGE 63 YEARS,
13. SHANKARA
S/O SHEKARA
AGE 62 YEARS,
14. BABURAYA
S/O SANKI
AGE 43 YEARS,
15. ASHOKA
S/O JALAJA
AGE 57 YEARS,
16. JYOTHI
D/O JALAJA
AGE 45 YEARS,
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RSA No. 1705 of 2015
17. SANTHOSHA
S/O JALAJA
AGE 44 YEARS,
18. JAGADISHA
S/O JALAJA
AGE 40 YEARS,
RESPONDENTS 1 TO 18 ARE
R/O ADI UDUPI, AMBALAPADI,
UDUPI TALUK AND DISTRICT-576103
19. DEJU
S/O THOMA POOJARY
AGE 55 YEARS,
20. GULABI
D/O THOMA POOJARY
AGE 52 YEARS,
21. RAMESH
S/O THOMA POOJARY
AGE 50 YEARS,
22. SUMATHI
D/O THOMA POOJARY
AGE 45 YEARS,
RESPONDENTS 19 TO 22 ARE
RESIDENTS OF NEAR HANUMAN GARAGE,
BAILORE, 76 BADAGABETTU VILLAGE,
POST UDUPI,
UDUPI TALUK AND DISTRICT-576103
23. MAHABALA
S/O KORAGA POOJARY
AGE 69 YEARS,
24. SUNDARA
S/O KORAGA POOJARY
AGE 67 YEARS,
25. LALITHA
D/O KORAGA POOJARY
AGE 65 YEARS,
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RSA No. 1705 of 2015
26. VASANTHI
S/O KORAGA POOJARY
AGE 55 YEARS,
27. VISHWANATHA
S/O KORAGA POOJARY
AGE 50 YEARS,
28. SARITHA
D/O KORAGA POOJARY
AGE 45 YEARS,
29. KRISHNA
S/O KORAGA POOJARY
AGE 42 YEARS,
RESPONDENTS 23 TO 29 ARE
RESIDENTS OF VISHNUMOORTHY NAGARA,
POST NITTUR,
PUTTUR VILLAGE
UDUPI TALUK AND DISTRICT-576103
...RESPONDENTS
(R1(a-j) SERVED AND UNREPRESENTED;
V/O DATED 15.7.2022 NOTICE TO R2-R9 D/W)
THIS RSA FILED UNDER SEC.100 OF CPC., PRAYING TO SET
ASIDE THE ORDER DATED 31.7.2015 PASSED BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE, AT UDUPI, IN R.A.UN-
NUMBERED/2006 BY DISMISSING THE I.A.NO.3 AND ALSO SET-
ASIDE THE JUDGMENT AND DECREE DATED 27.11.2004 PASSED BY
THE LEARNED PRINCIPAL CIVIL JUDGE (JR.DN.) AT UDUPI, IN
O.S.NO.289/99, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS RSA, COMING ON FOR DISMISSAL FOR NON-
PROSECUTION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1705 of 2015
JUDGMENT
1. The Appellants are before this Court seeking for the
following relief:
"Set-aside the order dated 31.7.2015 passed by the
learned Principal Senior Civil Judge, at Udupi, in
R.A.Un-numbered/2006 by dismissing the I.A.No.3,
and also set-aside the judgment and decree dated
27.11.2004 passed by the learned Principal Civil
Judge (Jr.Dn) at Udupi in O.S.No.289/99, in the
interest of justice and equity."
2. The appellants were defendants in O.S.No.289/1999
filed before the Principal Judge (Jr.Dn.), Udupi. The
said suit in the suit having been filed seeking for
relief of partition and separate position.
O.S.No.289/1999 came to be decreed granting the
plaintiff 1/6th share in plaint 'A' schedule properties
and Issue Nos.2 and 4 were left open for deciding
during final decree proceedings.
3. Challenging the same, an appeal in RA unnumbered
of 2006 came to be filed on 10.03.2006. There was
a delay of 417 days in preferring an appeal. Hence,
an application in I.A.No.3 under Section 5 of the
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Limitation Act was taken for consideration. The first
Appellate Court being of the opinion that 417 days
delay is inordinate, explanation offered is not proper
dismissed the said application thereby not taking on
record the Regular Appeal. It is challenging the
same, the appellants are before this Court.
4. A perusal of the impugned order dated 31.07.2015 in
RA unnumbered of 2006 would indicate that the
judgement in the suit was passed on 27.11.2004.
The appellants are the children of Kamala who was
defendant No.1 before the trial Court. The mother
Kamala was conducting the affairs in respect of the
plaint properties and she was handling the suit
before the trial Court. She became sick and unable
to attend the matter and thereafter she expired on
30.12.2005 without taking any steps to file an appeal
to challenge the judgment and decree dated
27.11.2004. It is further contended that other
appellants being her children were residents of
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Mumbai and did not know about the pendency of the
proceedings to take necessary action by filing an
appeal.
5. A perusal of the order would also indicate that once
the matter was taken up for evidence, evidence was
led by one Sudhakara S/o Kamala who also expired
on 13.03.2011 and as such, the matter before the
first Appellate Court proceeded for inordinate long
period of time in his absence and subsequently, his
evidence being struck of, the third plaintiff was
examined on 01.03.2014 on behalf of the appellants.
6. The respondents not having led evidence, the first
Appellate Court came to a conclusion that the
witness used to visit the native place from time to
time ought to have filed an appeal within time. The
first Appellate Court refused to accept the contention
that due to the death of his mother, the appeal could
not be filed within time and that the delay of 417
days was inordinate.
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7. This reasoning of the first Appellate Court in my
considered opinion is flawed inasmuch as once it has
been admitted that the mother was conducting the
litigation and she had expired on 30.12.2005, the
appeal having been filed on 10.03.2006 within a
short period thereafter taking into consideration that
the mother was sick, unwell and expired and
thereafter it normally takes some time for the family
members to ascertain the requirement of filing the
appeal and set the family affairs in order, the first
Appellate Court ought to have condoned the delay of
417 days. Merely because the witness who was
residing in Mumbai was visiting Udupi from time to
time, the first Appellate Court ought not to have
come to a conclusion that he had the opportunity for
filing the appeal within time. In that view of the
matter and in the interest of justice, I am of the
considered opinion that the order passed by the first
Appellate Court is required to be set aside.
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8. In view of the above, I am of the considered opinion
that there is no substantial question of law which
arises, and it is the interest of justice would be
required to be preserved. The appellants would
necessarily have to be put to terms in view of the
time spent in the matter and now the matter being
taken up by the first Appellate Court, the appellants
are directed to make payment of a sum of
Rs.10,000/- to each of the contesting respondents.
9. Hence, I pass the following:
ORDER
i) The appeal is partly allowed.
ii) The delay of 417 days in preferring the appeal
is condoned.
iii) The matter is remitted to the Principal Senior
Civil Judge, Udupi for fresh adjudication on
merits after issuing necessary notice to the
respondents.
Sd/-
JUDGE
