Karnataka High Court
Babusingh S/O Govindsingh Hajari vs Shantabai W/O Shivalal Singh Rajput And ... on 29 May, 2024
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NC: 2024:KHC-K:3369
RSA No. 200205 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200205 OF 2023 (PAR &
SEP. POS)
BETWEEN:
SRI BABUSINGH S/O GOVINDSINGH HAJARI
AGED ABOUT: 70 YEARS, OCC- AGRICULTURE
R/O: MUDNOOR (B) VILLAGE, SHORAPUR,
TQ: SHORAPUR, DIST: YADGIR-585220.
...APPELLANT
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
AND:
1. SMT. SHANTABAI W/O SHIVALAL SINGH RAJPUT
AGED ABOUT: 66 YEARS, OCC: HOUSEHOLD
R/O: ALDAL VILLAGE, SHORAPUR
Digitally signed TQ: SHORAPUR, DIST: YADGIR- 585 220.
by SWETA
KULKARNI
Location: High 2. SMT. TULJABAI W/O HEERA SINGH RAJPUT
Court of AGED ABOUT: 58 YEARS, OCC: HOUSEHOLD,
Karnataka
R/O: HANDGINUR VILLAGE, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
3. SMT. AMBUBAI W/O RAJARAM SINGH
AGED ABOUT: 68 YEARS, OCC: HOUSEHOLD
R/O: MUDNOOR (B) VILLAGE, SHORAPUR,
TQ: SHORAPUR, DIST: YADGIR-585220.
4. SMT. BHAGIRATHI W/O MAHADEV SINGH TAKOOR
AGED ABOUT: 73 YEARS, OCC: HOUSEHOLD
R/O: SHAHABAD, TQ: CHITTAPUR
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NC: 2024:KHC-K:3369
RSA No. 200205 of 2023
DIST: KALABURAGI 585110.
5. SRI RAMSINGH S/O GOVINDSINGH HAJARI
AGED: 62 YEARS, OCC: AGRICULTURE
R/O: MUDNOOR (B) VILLAGE, SHORAPUR
TQ: SHORAPUR, DIST: YADGIR-585220.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO CALL FOR THE RECORDS
IN O.S.NO.139/2009, ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) SHORAPUR AND R.A.NO.02/2013, ON THE FILE OF
SENIOR CIVIL JUDGE AT SHORAPUR AND SET ASIDE THE
JUDGMENT AND DECREE IN R.A. NO.02/2013, PASSED BY THE
SENIOR CIVIL JUDGE AT SHORAPUR, DATED 21.01.2013 AND
THE JUDGMENT AND DECREE PASSED IN O.S. NO.139/2009,
ON THE FILE OF THE CIVIL JUDGE (JR.DN), SHORAPUR DATED
05.06.2012 AND GRANT COSTS OF THIS APPEAL AND GRANT
SUCH OTHER OR FURTHER RELIEF/S AS THIS COURT MAY
DEEM FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal by the defendant No.3
assailing the concurrent findings of the courts below, whereby,
the suit of the plaintiff for partition and separate possession
was decreed. The said appeal is being accompanied by
I.A.No.1/2024 seeking to condone the inordinate delay of 2926
days in preferring the present appeal.
NC: 2024:KHC-K:3369
2. Heard Sri Arunkumar Amargundappa, learned
counsel for the appellants.
3. In support of the application in I.A.No.1/2024, an
affidavit is sworn to by the appellant. The relevant portion of
the affidavit is culled out and extracted hereunder:
"4. I state that, the appeal filed by me before the first
appellate Court was decided on 21.01.2013. The said
judgment was not within my knowledge till recently as I
had not been informed by my counsel before the first
appellate Court that my physical presence before the
Court was not necessary. On such information I returned
my village. After filing the appeal as I was aged about 60
years suffering from knee pain and other age old ailments
as such I was wondering various Ayurvedic as well
allopathic centers to get the treatment. Therefore I was
not in a position to contact the advocate before the trial
Court to know the stage of the appeal. Because of
communication gap I was did not know about passing of
the impugned Judgment & Decree. I at present aged
about 70 years. I become aware of the Judgment and
Decree only in the 1st week of April 2023, when I met the
counsel before the 1st appellate Court and obtained
certified copies and on the advise filing this appeal. Thus,
there is delay in filing the above appeal."
4. As extracted above in the affidavit, it is stated that
the appellant was not aware about the judgment and decree
NC: 2024:KHC-K:3369
passed by the first appellate Court which was decided on
21.01.2013. It is stated that after filing of the appeal before
the first appellate Court, the appellant was seeking treatment
for his knee pain and that he was not in a position to contact
the Advocate before the trial Court and could not ascertain the
stage of the appeal and that only in the first week of April,
2023 when he met his counsel he came to know about the
judgment and decree passed against him.
5. The reasons mentioned in the affidavit do not
appraise the conscious of this Court, more particularly, for the
unexplained delay from 21.01.2013 till he met his Advocate in
the month of April, 2023. The delay is not of few days but of
2926 days i.e., more than eight years and the reasons assigned
is not acceptable and the appeal has to be dismissed on the
ground of delay and laches.
6. It is well settled position of law that the existence of
"sufficient cause" to the satisfaction of the Court is the
condition set for the courts to exercise its discretion in the
matter of condoning the delay. In the circumstances, the cause
stated in the affidavit cannot be said to be bonafide or sufficient
NC: 2024:KHC-K:3369
cause. Despite there being delay, this Court has examined the
appeal on merits, in order to ensure justice is not denied on the
ground of limitation.
7. A perusal of the judgment and decree of the courts
below would indicate that the suit for partition and separate
possession filed by the respondents/plaintiffs is decreed
granting legitimate share and plaintiffs and defendants are
brothers and sisters. The first appellate Court concurred with
the judgment and decree of the trial Court being the last fact
finding Court. The appellant is unable to substantiate his case
regarding any substantial question of law that arises for
consideration.
8. Accordingly, the appeal is dismissed on the ground
of delay for having not made out sufficient grounds to condone
inordinate delay of 2926 days as well as on the merits.
Sd/-
JUDGE
SWK
CT: VD
