Karnataka High Court
Rukmawwa W/O. Basappa Petalur Alias ... vs Ningappa S/O. Shambulingappa ... on 25 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA No. 100476 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100476 OF 2023 (DEC/INJ)
BETWEEN:
1. RUKMAWWA
W/O. BASAPPA PETALUR ALIAS PETLUR,
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. VENKATAPUR-591310,
TQ. GOKAK AND DIST. BELAGAVI.
2. TAYAWWA
W/O. NEELAPPA HULAGANNAVAR
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. HONAKUPPPI 591227,
TQ. GOKAK, DIST. BELAGAVI.
3. RENUKA
W/O. RAMAPPA MAKANNAVAR
AGE. 38 YEARS, OCC. AGRICULTURE,
Digitally signed R/O. KAMANAKATTI-591136,
by GIRIJA A
BYAHATTI TQ.GOKAK, DIST. BELAGAVI.
Location: HIGH
COURT OF
KARNATAKA
4. ANNAPURNA
W/O. RAMESH DONI
AGE. 36 YEARS, OCC. AGRICULTURE,
R/O. SUNADHOLI-53110,
TQ. GOKAK, DIST. BELAGAVI
...APPELLANTS
(BY SRI. ARUN L. NEELOPANT AND
MISS. KAVITA S. JADHAV, ADVOCATES)
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RFA No. 100476 of 2023
AND:
1 . NINGAPPA
S/O. SHAMBULINGAPPA GOLIPALLE
AGE. 59 YEARS, OCC. AGRICULTURE,
R/O. KAMANAKATTI, TQ. GOKAK AND
R/O. GALAGALI 587117,
TQ. MUDHOL, DIST. BAGALKOT.
2 . GOURAWWA
W/O. MALLAPPA KUTAKANAKERI
AGE. 63 YEARS, OCC. AGRICULTURE,
R/O. GALAGALI 587117,
TQ. MUDHOL, DIST. BAGALKOT.
3 . ANNAPURNA W/O. IRAPPA SHIROL
AGE. 57 YEARS, OCC. AGRICULTURE,
R/O. HUNNUR-587119,
TQ. JAMAKHANDI, DIST. BAGALKOT.
... RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 R/W
ORDER 41 RULE 1 CPC., AGAINST THE JUDGMENT AND DECREE
DATED 26.08.2019 PASSED IN O.S.NO.66/2018 ON THE FILE OF THE
1ST ADDITIONAL SENIOR CIVIL JUDGE GOKAK, DECREEING THE SUIT
FILED FOR DECLARATION AND PERMANENT INJUNCTION.
I.A.1/2023 IS FILED UNDER ORDER 41 RULE 3A OF CPC R/W.
SECTION 5 OF THE LIMITATION ACT, FOR CONDONATION OF DELAY
OF 637 DAYS IN FILING THE APPEAL.
THIS APPEAL AND I.A.1/2023 HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON I.A.1/2023 ON 18/07/2024 AND
COMING ON FOR 'PRONOUNCEMENT OF ORDERS' THIS DAY,
T.G.SHIVASHANKARE GOWDA J., PRONOUNCED THE FOLLOWING:
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RFA No. 100476 of 2023
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
The defendants have filed the present appeal challenging
the judgment and decree dated 26.08.2019 passed in
O.S.No.66/2018 by the I Addl. Senior Civil Judge, Gokak,
decreeing the suit of the plaintiffs, that they are the exclusive
owners in possession of the suit schedule property and
restraining the defendants from interfering with their
possession and enjoyment.
2. The suit schedule property consists of 7 acres of
land in RS No.95/2/P2, out of 12 acres (PK-08 guntas) situated
at Kamanakatti village of Gokak Taluka.
3. There is a delay of 637 days in preferring this
appeal. Seeking condonation of delay, I.A.1/2023 is filed under
Order 41 Rule 3A of CPC read with Section 5 of the Limitation
Act.
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3(a) In support of the application, defendant No.1 -
Smt. Rukmawwa has sworn to an affidavit that she and other
defendants are illiterate and rustic village ladies residing in
different villages, working in lands for their livelihood. They are
unaware of the legal consequences of non-appearance before
the Court proceedings. After receipt of the suit summons, she
made enquiry with the plaintiffs, in turn, plaintiffs assured her
to settle the matter before the elders after service of notice to
the defendant No.3. They have waited for service of notice to
defendant No.3. The plaintiffs have taken service of notice to
defendant No.3 through paper publication and it never came to
their knowledge, nor the plaintiffs had informed them about
service of notice to defendant No.3. Behind the back of them,
plaintiffs have obtained ex-parte decree during the Covid
period.
3(b) It is further sworn that, in the month of July 2023,
plaintiffs started obstructing possession of the defendants in
agricultural activities on the ground that they have obtained the
judgment and decree against them. Immediately on coming to
know about this, they have approached their advocate and
came to know about ex-parte judgment and decree passed
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against them. Without making any delay, they have
approached the advocate and preferred the appeal. They have
good case on merits and therefore, if the delay is not
condoned, they will be put to great injustice.
4. The plaintiffs have filed counter to the application,
contending that the suit was decreed on 26.08.2019. There is
an inordinate delay of 1727 days. The delay is not explained
by the defendants. The defendants have not come with clean
hands and they are not entitled to discretionary and equitable
relief. Non-service of notice to defendant No.3 is not a ground
for defendants No.2 and 4 to wait without filing the written
statement and appearing before the Court. They have denied
the approach made by defendants No.1 to 4 and plaintiffs
promising them to settle before the elders after service of
notice to defendant No.3. It is further contended that the
father of the plaintiffs had purchased 04 acres of land on
31.12.2016 and 3 acres on 07.08.1998, from the father of
defendants. Thereby, the plaintiffs came in possession and
enjoyment of the property. After the demise of their father,
defendants colluding with each other, filed a suit in
O.S.No.134/2013 and got compromised themselves in respect
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of 3 acres of land purchased by the father of the plaintiffs in the
year 1998 and hence the plaintiffs were constrained to file the
suit. In spite of service of notice, defendants No.1, 2 and 4
remained absent and placed ex-parte. The defendants have
exercised their right and ownership in respect of 4 acres 32
guntas of land, what remained after sale of 3 acres in favour of
the father of the plaintiffs. By a registered sale deed on
18.08.2022, the defendants have sold the entire 4 acres 32
guntas. In order to harass the plaintiffs, defendants have filed
the present appeal suppressing the truth and sought for
dismissal of the application as well as the appeal.
5. We have heard the arguments of Sri. Kavitha
Jadhav, learned counsel for the defendants/appellants,
Sri.Mrutyunjaya Tata Bangi, learned counsel for the
plaintiffs/respondents and perused the records.
6. Learned counsel for the defendants has argued in
line with the affidavit sworn to by the first defendant and
further contended that defendants 1, 2 and 4 are served with
summons, they approached plaintiff No.1, who promised to
compromise and to settle the dispute after service of notice to
defendant No.3. They were waiting for the call of plaintiffs.
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The plaintiffs without informing service of notice to the
defendant No.3 through paper publication, prevented these
defendants from appearing before the Court and obtained the
decree. The defendants being the illiterate ladies, have been
prevented on account of the indulgence of the plaintiffs and if
an opportunity is provided, to contest the suit, no prejudice will
be caused to the plaintiffs.
7. Per contra, learned counsel for the
plaintiffs/respondents argued in line with the statement of
objections filed to the application. It is further contended that,
defendants No.1 to 4 were very well knew about the pendency
of the suit against them. They were kept quiet for the reason
that their father sold the property in favour of father of the
plaintiffs. The delay of 1727 days has not been properly
explained. When the suit was pending for appearance of the
defendants, there was no Covid-19. The defendants wanted to
take advantage of the Covid-19 on account of exclusion of
period of limitation. That benefit of Covid-19 cannot be
extended to the defendants as they were placed ex-parte even
prior to the inception of Covid-19 and also judgment was
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passed prior to Covid-19 inception and sought for dismissal of
the application.
8. Now the point that arises for our consideration is;
"Whether the defendants have made out
sufficient grounds for condonation of delay?
9. Before considering the application for condonation
of delay, it is relevant to refer the case pleaded by the
plaintiffs. The plaintiffs have filed the suit for declaration of
title and consequential relief of permanent injunction against
the defendants, in respect of 7 acres of land in Survey
No.95/2/P2 of Kamanakatti village of Gokak Taluk. It is their
case that, the father of the plaintiffs Shambulingappa has
acquired the title over the said 7 acres of land, firstly 4 acres of
land under the sale deed dated 22.08.1996 for consideration of
Rs.32,000/-, from the erstwhile owner of the said land and 3
acres of land under sale deed dated 07.08.1998 for a
consideration of Rs.22,666/- from the father of the defendants.
10. The father of the plaintiffs was put in possession of
the property and he continued in possession. After the death of
the father, the plaintiffs are continued to be in possession and
enjoyment of the property. As the defendants tried to interfere
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with their peaceful possession and enjoyment and they have
also filed collusive suit in O.S.No.134/2013 and got
compromised the matter suppressing the sale in favour of the
father of the plaintiffs, hence they were constrained to file the
present suit.
11. As observed above, in spite of service of notice,
defendants No.1 to 4 remained absent and placed ex-parte
before the Trial Court. Service to defendant N.3 was taken
through paper publication. The defendants admit service of
summons to defendants No.1, 2 and 4. Thereafter, they
claimed to have approached the plaintiffs. They were sent back
with a promise of settlement after service of notice to
defendant No.3. It is contended, the service on defendant
No.3 was not made known to the defendants and hence, they
remained absent till the plaintiffs started interfering with their
possession after obtaining the judgment and decree.
12. The records show that, before the Trial Court, the
plaintiffs have led the evidence and the suit was considered on
merits and the judgment was passed on 26.08.2019, declaring
that the plaintiffs are the owners of the suit schedule property
restraining the defendants from interfering with their
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possession. The plea of the defendants that they are illiterate
cannot be substantiated as they were well aware that the suit
of the plaintiffs was pending against them for the relief of
declaration. In spite of knowing the same, they have kept
quiet. The judgment though pronounced on 26.08.2019, the
defendants were pleaded ignorance about the same. The
Courts were reopened for the litigant public after Covid-19 with
effect from 15.03.2020, whereas the appeal is filed on
07.08.2023, after almost two years of reopening of the Court.
The explanation offered by the defendant No.1 that she was not
aware of judgment and decree is not substantiated. When the
defendants were aware of the pending proceedings, nothing
prevented them from appearing before the Court and put forth
their defence. On the ground of illiteracy and seeking
indulgence of the Court as they are the ladies, is only a ground
for sympathy and we do not find any reason to accept the
affidavit filed by defendant No.1 for condonation of delay,
which do not constitute sufficient cause.
13. Even on perusal of the impugned judgment that the
suit is based on the sale in favour of the father of the plaintiffs,
by the father of the defendants, no materials are placed that
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the defendants have challenged the alienation by their father in
favour of the father of the plaintiffs. We do not find any
substance, which constitute sufficient grounds even on merits.
14. In view of our above discussions, there are no
reasons to condone the delay.
15. In the result, the following:
ORDER
I.A.1/2023 filed by the defendant/appellants seeking
condonation of delay in filing this appeal is hereby dismissed.
Consequently, the appeal is dismissed as barred by time.
Sd/-
JUDGE
Sd/-
JUDGE
gab
Ct-cmu
