Karnataka High Court
Dattatreya S/O Hanumantharao ... vs Shivaji S/O Hanumanthrao Sanglikar on 6 June, 2024
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RSA No. 100056 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100056 OF 2024 (PAR/POS-)
BETWEEN:
DATTATREYA S/O HANUMANTHARAO
SANGLIKAR, AGE: 71 YEARS,
OCC: AGRICULTURE,
R/O CHANDANMATTI, KAVALGIRI,
AMMINABHAVI, TQ & DIST: DHARWAD.
...APPELLANT
(BY SRI SATISH S. RAICHUR, ADVOCATE FOR
SRI. ANAND BAGEWADI, ADVOCATE)
AND:
1. SHIVAJI S/O HANUMANTHRAO SANGLIKAR
AGE: 77 YEARS, OCC: AGRICULTURE,
R/O A-15, BARACK, K K HILL NO.4,
SHRI SIDDI VINAYAK RAHIVASHI SANSH,
Digitally signed APPA HOME, GUARD CENTER,
by SAROJA NETAJI PALKAR PATH (NSS ROAD)
HANGARAKI ASLPHA NAGAR, GHATKOPAR (WEST), MUMBAI-400084.
Location: HIGH
COURT OF 2. BABURAO S/O HANUMANTHARAO
KARNATAKA SANGLIKAR, AGE: 76 YEARS,
DHARWAD OCC: AGRICULTURE,
BENCH R/O HAKRISA NIVAS, OPP HARIMANDIR MANAKILLA,
DHARWAD DHARWAD, TQ & DIST. DHARWAD.
3. SMT. MANGALA KOM. IRANNA BADIGER
AGE: 64 YEARS, OCC: HOUSEHOLD,
R/O SIDDALINGESHWAR COLONY,
NEAR VIKAS NAGAR, HUBLI TQ.,
HUBLI, DIST. DHARWAD.
4. SMT NANDINI W/O ANANDA BANDEKAR
AGE: 63 YEAR, OCC: HOUSEHOLD
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RSA No. 100056 of 2024
R/O VIKAS NAGAR, 2ND CROSS,
HUBLI, TQ: HUBLI, DIST: DHARWAD.
5. SMT. KALPANA W/O LINGARAJ MUNDINAMANI
AGE: 60 YEAR, OCC: HOUSEHOLD
R/O SAI NAGAR, HUBLI, TQ: HUBLI
DIST: DHARWAD.
6. SMT. ANURADHA W/O GEMS MYETHY
AGE: 58 YEAR, OCC: HOUSEHOLD,
SIDDALINGESHWAR COLONY,
NEAR VIKAS NAGAR, HUBLI
TQ: HUBLI, DIST: DHARWAD.
7. SMT. DHANALAXMI W/O GANGADHAR
MUNDINAMANI, AGE: 55 YEAR, OCC: HOUSEHOLD,
R/O SIDDALINGESHWAR NAGAR,
NEAR VIKAS NAGAR, HUBLI. TQ: HUBLI,
DIST: DHARWAD.
8. SMT. SAROJINI W/O PARASHURAM
DHARWADAKAR, AGE: 78 YEAR, OCC: AGRICULTURE
R/O MATRUCHAYA, MANGALWAR PETH,
NEAR HARI MANDIR, MANAKILLA, DHARWAD.
SURESH S/O HANUMANTHARAO SANGLIKAR
SINCE DECEASED BY HIS LEGAL
REPRESENTATIVES
SMT. UMA W/O SURESH SANGLIKAR
9.
AGE: 65 YEAR, OCC: HOUSEHOLD
R/O HAKRISA, OPP: HARI MANDIR,
MANIKILLA, DHARWAD.
10. SHRIDHAR S/O SURESH SANGLIKAR
AGE: 47 YEAR, OCC: BUSINESS,
R/O HAKRISA, OPP HARI MANDIR,
MANIKILLA, DHARWAD.
11. YASHVANT S/O SURESH SANGLIKAR
AGE: 43 YEAR, OCC: BUSINESS,
R/O HAKRISA, OPP. HARI MANDIR,
MANIKILLA, DHARWAD.
12. DILEEP S/O SURESH SANGLIKAR
AGE: 40 YEAR, OCC: BUSINESS,
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RSA No. 100056 of 2024
R/O HAKRISA, OPP: HARI MANDIR,
MANIKILLA, DHARWAD.
13. SMT. DIVYARANI W/O RANGAHASH P.
AGE: 41 YEAR, OCC: HOUSEHOLD,
R/O HAKRISA, OPP: HARI MANDIR
MANIKILLA, DHARWAD.
14. SMT. VIJAYA W/O LAXMAN
NARAGUNDAKAR, AGE: 74 YEAR, OCC: HOUSEHOLD,
R/O BASAPPA CHOWK ROAD, DHARWAD.
15. SMT. KASTURI W/O NARAYAN MUROGODA
AGE: 68 YEAR, OCC: AGRICULTURE,
R/O SUBHODAYA, DHANESHWARI NAGAR,
1ST CROSS, VIDYAGIR, DHARWAD.
(NOTE: SUIT AGAINST DEF NO.8(A) TO 8(D)
IS DISMISSED AS NOT PRESSED HENCE THEY ARE NOT
ARRANGED AS PARTY RESPONENDENTS IN THIS APPEAL)
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 25.10.2023 PASSED
BY THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DHARWAD,
IN RA NO. 48/2018 DISMISSING THE APPEAL OF THE APPELLANT
CONFIRMING THE JUDGMENT AND DECREE DATED 10.10.2017
PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, DHARWAD
IN OS NO. 202/2013 AND DISMISS THE SUIT FILED BY THE
PLAINTIFF/ RESPONDENT NO.1.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This present second appeal is filed under Section 100
of the Code of Civil Procedure1 by the defendant No.11,
challenging the order dated 25.10.2023 passed on
I.A.No.V, in R.A.No.48/2018 by the IV Additional Senior
Hereinafter referred to as 'CPC'
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Civil Judge and JMFC Court, Dharwad,2 and the Judgment
and decree dated 10.10.2017 passed in O.S.No.202/2013
by the III Additional Civil Judge and JMFC Court, Dharwad,
at Dharwad3, whereunder, the suit for partition has been
decreed by the trial Court and in the appeal filed by the
defendant No.11, the application for condonation of delay
has been rejected and consequently the appeal was also
dismissed.
2. The parties will be referred to as per their
ranking before the trial Court, for the sake of convenience.
3. It is the case of the plaintiff that, the propositus
Hanumantarao S/o. Krishnaji Sanglikar died leaving behind
his sons i.e., plaintiff and defendant Nos.1, 9, 11 and
daughters i.e. defendant No.7, 8, 10, and 12 and grand
daughters defendant No.2 to 6 i.e., daughters of late
Jijabai (daughter of Hanumanthrao) as his legal heirs.
Smt. Parvati wife of the propositus, pre-deceased him.
That the suit properties are the joint family properties in
Hereinafter referred to as 'the first appellate Court'.
Hereinafter referred to as 'the trial Court'.
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the joint possession and enjoyment of the plaintiff and
defendant Nos.1 to 12 and no partition by metes and
bounds has been made between the parties. It is the
further case of the plaintiff that, he is the elder son and
employed at Kuwait and contributed to the maintenance of
the joint family and acquisition of the properties in the
name of different family members. That the defendant
No.9 and his sons are trying to construct a house in the
suit property at Sl.No.II(i). That when the plaintiff asked
the defendant No.9 and his son to stop construction, they
have denied and stated that plaintiff has no share in the
property. Hence, the plaintiff has filed the suit.
4. The defendant No.1 entered appearance in
person and defendant Nos.2, 3, 4, 6, 7, 9, 10 and 11
entered appearance through their counsel, but no written
statement was filed. The defendant Nos.5 and 12 have
placed ex-parte and the suit was dismissed against the
defendant Nos.8(a) and 8(d) as not pressed. The trial
Court framed the following issues:
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(i) Whether the plaintiff proves that the
suit properties are joint family properties?
(ii) Whether the plaintiff is entitled to a
share over the suit properties and if so, what
extent?
(iii) Whether the plaintiff is entitled to
permanent injunction against the defendant
No.9 as prayed for ?
(iv) What order or decree ?
5. The plaintiff examined himself as P.W.1 and
marked Ex.P.1 to Ex.P.92. The defendants did not lead any
evidence. The trial Court by its Judgment and decree
dated 10.10.2017 decreed the suit and passed the
following order:
"The suit of the plaintiff is hereby decreed.
The plaintiff is entitled to 1/9th share over the
suit "I(a) to (d)" and "II (i) to (vi)" properties.
The defendant No.9 is hereby restrained by
way of permanent injunction from making any
construction in the suit property CTS No.332/A.
No order as to costs.
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Draw decree accordingly."
6. Being aggrieved, the defendant No.11 preferred
R.A.No.48/2018 and since there was a delay in filing the
said appeal, I.A.No.4 was filed to condone the delay of
325 days in preferring the appeal. The first appellate Court
by its order dated 25.10.2023 dismissed the said I.A.No.4
filed under Section 5 of the Limitation Act and
consequently, dismissed the appeal filed by the defendant
No.11. Being aggrieved, the present second appeal is filed.
7. Learned counsel for the appellant/defendant
No.11 vehemently contended that, the defendant No.11
did not have an opportunity to contest the suit on merits
and hence, the defendant No.11 ought to be accorded an
opportunity to contest the same. He further contends that,
the first appellate Court ought not to have rejected the
application for condonation of delay and that the order of
the first appellate Court is erroneous and liable to be set
aside. Hence, he seeks for allowing of the above appeal
and granting of the reliefs as sought for. The submission
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of the learned counsel for the appellant has been
considered and the material on record has been perused.
8. It is forthcoming from the order of the first
appellate Court that, while considering the case put forth
by the appellant regarding the condonation of delay, the
first appellate Court has recorded the following finding:
7(a). So, by challenging the said judgment,
present appellant, who was defendant No. 11 in the
said suit, has filed this appeal by making delay of 325
days. The reason which has been assigned by the
appellant for not preferring the appeal in time is that,
he after instructing his counsel to appear in the said
case before the Trial Court, due to his ill- health he
could not meet his counsel in time to file his written
statement and consequently the said suit was decreed
and when he received notice in FDP No. 5/2018 on 12-
06-2018, then only he came to know about passing of
the said decree. It is pertinent to mention here that
though the appellant stated that he was prevented by
sudden illness to file his written statement and also to
prefer this appeal challenging the said judgment
passed in OS No.202/2013 dated 10-10-2017, but
what was the illness and to what duration he was
under treatment has not been explained by the
appellant by leading cogent oral evidence or by
producing relevant documents. Therefore, without
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there being any documents in that regard for having
taken treatment by the appellant, it cannot be, on the
mere say in the affidavit filed in support of IA No.IV,
believed that he was prevented by his illness from
being preferred this appeal in time. The learned Senior
counsel for the appellant argued that mere on delay
the meritorious case cannot be thrown out of court on
technicalities and opportunity has to be given to the
appellant to prove his case. But, it is pertinent to
mention here that till date the appellant being
defendant No.11 has not filed his written statement
and thereby there is no any material before this Court
to ascertain that whether he has got an arguable case
or not. It is further pertinent to mention here that the
said OS No. 202/2018 was filed by the respondent No.
1 herein in the year 2013 and now after lapse of 10
years ie., in the year 2023 if the delay which has been
caused in preferring this appeal is condoned without
any sufficient, justifiable cause even on costs, then it
would cause much hardship to the respondent No.1 as
the same will take back and place him or the same
position where he was 10 years back in the litigation.
Therefore, in the present case on hand, considering
the material placed on record. I am of the opinion that
the appellant has not shown any justifiable cause to
condone the delay of 325 days caused in preferring
this appeal. Hence, the application filed by the
appellant seeking condonation of delay of 325 days is
requires to be rejected.
(emphasis supplied)
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9. Further, it is forthcoming from the Judgment of
the trial Court that, the plaintiff examined himself as
P.W.1 and marked Ex.P.1 to P92. The trial Court has
considered the documents produced by the plaintiff and
recorded a finding that, the properties are joint family
properties of the plaintiffs and defendants.
10. It is forthcoming that, the appellant has not
averred as to how the case was put forth by the plaintiff is
erroneous and the suit properties are not joint family
properties. Further, it is clear and forthcoming from the
order of the first appellate Court as noticed above, that
the defendant No.11 has not placed any material on
record to demonstrate that the delay is bonafide and is
required to be condoned. Further as rightly noticed by the
first appellate Court, the suit was pending before the trial
Court for more than four years and no explanation is set
forth by the defendant No.11 as to why he did not appear
before the trial Court during the said period.
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11. In view of the aforementioned, the appellants
have failed to demonstrate that any specific question of
law arises for consideration in the above appeal.
12. Hence, the above appeal is dismissed as being
devoid of merit at the stage of admission itself.
13. In view of the dismissal of the above appeal,
consideration of I.A.No.1/2024 for stay does not arise and
hence, the same is dismissed.
Sd/-
JUDGE
Svh/-
CT:GSM
