Karnataka High Court
Subhash vs The President And Anr on 28 May, 2024
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NC: 2024:KHC-K:3344
RSA No. 200390 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200390 OF 2017
(DEC/INJ)
BETWEEN:
1. SUBHASH S/O SIDDAPPA PATIL,
DIED BY LR'S.
1(a) SIDDAROODH,
S/O LATE SUBHASCHANDRA @ SUBHASH,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. GODUR, TQ: AFZALPUR,
DIST: KALABURAGI.
(Amended as per order dated11.10.2023)
...APPELLANT
(BY SRI. SANTOSH A. ADV. FOR
SRI. SUDHEER KULKARNI, ADVOCATE)
Digitally signed AND:
by SWETA
KULKARNI
Location: High 1. THE PRESIDENT,
Court of HYDERABAD KARNATAKA EDUCATION SOCIETY,
Karnataka
STATION BAZAR, KALABURAGI-585 102.
2. VISHWANATH,
S/O LATE SHIVASHARANAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. GUDUR, TQ: AFZALPUR,
DIST: KALABURAGI-585 265.
...RESPONDENTS
(BY SRI. AMARESH S. ROJA, ADV. FOR R1;
NOTICE TO R2-SERVED)
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RSA No. 200390 of 2017
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED; 31.08.2017,
PASSED BY THE III ADDL. DISTRICT JUDGE, KALABURAGI
IN R.A. NO.93/2014 DISMISSING THE I.A. NO.1 FILED U/SEC.
5 OF LIMITATION ACT FOR CONDONATION OF DELAY AND
CONSEQUENTLY DISMISSING THE APPEAL BY CONFIRMING
THE JUDGMENT AND DECREE DATED: 13.04.2007, PASSED BY
THE PRINCIPAL CIVIL JUDGE (SR.DN) KALABURAGI IN O.S.
NO.313/2000 AND FURTHER OT ALLOW I.A. NO.1 FOR
CONDONATION OF DELAY AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal by the plaintiff No.2
assailing the judgment and decree of the Courts below,
whereby, the suit of the plaintiff was dismissed by the Trial
Court and First Appellate Court dismissed the appeal
preferred by the plaintiff on the ground of delay.
2. Heard Sri Santosh A., learned counsel for Sri
Sudheer Kulkarni, learned counsel for the appellant and
Sri Amaresh S Roja, learned counsel for respondent No.1
on the substantial question of law framed by this Court.
3. Suit for declaration, declaring that they are the
owners in possession of the suit property and for
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consequential relief of permanent injunction restraining
the defendant from interfering into the peaceful possession
and enjoyment of the suit schedule property.
4. Pursuant to the suit summons issued by the
trial Court interalia defendants are appeared and filed their
written statement contesting the suit of the plaintiff.
5. The trial Court on the basis of the pleadings
framed necessary issues:
"1. Whether the plaintiffs prove that they are owners
in lawful possession of suit land?
2. Whether the plaintiffs prove that the defendants
interfered with their lawful possession over the
suit land?
3. Whether the defendant proves that the Govt.
acquired the suit land and handed over the same
to defendant?
4. Whether the valuation of this suit is proper and
court fee paid is sufficient?
5. Whether the defendant proves that this court has
no jurisdiction to try this suit?
6. Whether the defendant proves that this suit is
false and frivolous?
7. To what relief the parties are entitled?
8. What order or decree?"
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6. In order to substantiate their claim the plaintiff
No.2 examined himself as PW1 and led evidence of two
witness as PW2 and PW3 and got marked document as
Ex.P1 to Ex.P18. On the other hand defendant examined
himself as DW1 and got marked document as Ex.D1 to
Ex.D40.
7. The trial Court on the basis of the pleading and
oral and documentary evidence held that:
1. That the plaintiffs have failed to prove that they
are the owners in lawful possession of the suit
property.
2. That the plaintiffs have failed to prove that the
defendants interfered with their lawful
possession.
By the judgment and decree the trial Court
dismissed the suit of the plaintiffs.
8. Aggrieved by the judgment and decree of the
trial Court the plaintiff preferred RFA No.622/2008 before
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this Court. This Court on 29.01.2009 dismissed the
Regular First Appeal as not maintainable. The
appellant/plaintiff No.2 preferred Regular Appeal along
with IA No.I seeking for condonation of delay. The First
Appellate Court on the ground of delay and laches holding
that there is an inordinate delay of more than 7 years 7
months in preferring the Regular Appeal, dismissed IA No.I
and consequently dismissed the RA No.93/2014.
9. The following substantial question of law is
framed by this Court while admitting the appeal.
"Whether the First Appellate Court was justified in
dismissing IA No.I filed by the appellant/plaintiff under
Section 5 of the Limitation Act and consequently
dismissing the appeal?"
10. The fact remains that the RFA No.622/2008 was
preferred by plaintiff No.2 before this Court assailing the
judgment and decree dated 13.04.2007 in O.S
No.313/2000. Plaintiff No.2/appellant was wrongfully
prosecuting the appeal before this Court till 2009, which
came to be dismissed as not maintainable. After obtaining
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the certified copy of the Regular First Appeal of this Court
on 10.09.2014, the RA No.93/2017 was preferred before
the First Appellate Court, in order to make out a case to
condone the delay in preferring the appeal, he examined
himself as PW1 and explained the delay in preferring the
appeal, the First Appellate Court held that plaintiff
No.2/appellant has not made any efforts since 2007 after
the judgment and decree of the trial Court and till the date
of filing the instant RA No.93/2017 and there is an
inordinate delay of more than 7 years 7 months in
preferring the appeal.
11. The First Appellate Court lost sight of the fact
that the Regular First Appeal was immediately preferred
by the plaintiff No.2 before this Court and he was
wrongfully prosecuting before this Court. The delay and
laches cannot be attributed to the plaintiff and there
cannot be a reason to hold that he was negligent into the
prosecuting his appeal. However, the plaintiff No.2 ought
to have preferred Regular Appeal before the First Appellate
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Court immediately after the dismissal of the Regular First
Appeal. There is delay in preferring the Regular Appeal
after the dismissal of the Regular First Appeal but this can
be compensated by imposing some cost upon the
appellant as the matter requires to be considered on the
merits and the First Appellate Court being the last fact
finding Court has to re-appreciate and reconsider the
matter on merits.
12. In light of the same the substantial question of
law framed by this Court is answered holding that the
application seeking for condonation of delay needs to be
condoned in light of the fact that the appellant was
wrongfully prosecuting before this Court on payment of
cost of Rs.25,000/- to be paid to the defendant on the
date of hearing. Accordingly, this Court pass the
following:
ORDER
i. The Regular Second Appeal is here by allowed
in part.
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ii. The judgment and decree of the First appellate
Court in RA No.93/2014 dated 31.08.2017 on
the file of III Addl. District and Sessions Judge,
Kalaburagi is hereby set aside and the matter is
remitted back to the First Appellate Court for
reconsideration of the appeal on merits.
iii. IA No.I seeking for condonation of delay is
allowed on payment of cost of Rs.25,000/- to
be paid to the defendant on 26.06.2024. The
date on which the parties have to appear before
the Court.
iv. The First appellate Court to dispose of the appeal
on merits as expeditiously as possible.
Sd/-
JUDGE
AT
CT: VD
