Karnataka High Court
Venkoba S/O Basanna vs Nagamma W/O Sheshappa on 29 May, 2024
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RSA No. 200241 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.200241 OF 2023 (PAR &
SEP.POS)
BETWEEN:
VENKOBA S/O BASANNA
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: RAMANAL VILLAGE, TQ: DEODURGA,
DIST: RAICHUR-584111.
...APPELLANT
(BY MISS NILUFARHANAZ, ADV. FOR
SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)
AND:
Digitally signed
by SWETA
KULKARNI NAGAMMA W/O SHESHAPPA
Location: High AGE: 49 YEARS, OCC: HOUSEHOLD,
Court of R/O: K. ERABAGERA VILLAGE,
Karnataka
TQ: DEODURG, DIST: RAICHUR-584111.
...RESPONDENT
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE IMPUGNED ORDER DATED:
15.11.2021 PASSED IN R.A. NO.6/2018 ON THE FILE OF
SENIOR CIVIL JUDGE AND JMFC DEVADURGA AND REMAND
BACK THE MATTER TO THE FIRST APPELLATE COURT FOR
FRESH DISPOSAL THEREBY CONDONING THE DELAY CAUSED
IN FILING THE APPEAL IN R.A.NO.6/2018.
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RSA No. 200241 of 2023
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff is before this Court in the second appeal.
Suit of the plaintiff for partition and separate possession
seeking 1/3rd share was partly decreed awarding ½ share in the
land R.S.No.58 measuring 5 acres 4 guntas. The plaintiff
preferred appeal. The appeal was accompanied with I.A.No.1
to condone the delay of 3 years 4 months 6 days in preferring
the appeal. The first appellate Court arrived at a conclusion
that the plaintiff/appellant has not made out any ground to
condone the inordinate delay of more than 3 years and
accordingly dismissed I.A.No.I and consequently regular appeal
preferred by the plaintiff was also dismissed. The present
second appeal is preferred and along with the appeal
I.A.No.1/2023 is filed seeking to condone the delay of 327 days
in preferring the present appeal.
2. Heard learned counsel Miss Nilufarhanaz, learned
counsel appearing on behalf of Ganesh Subhaschandra
Kalaburagi, learned counsel for the appellant.
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3. In support of the application, the reasons stated is
culled out and extracted hereunder:
Para 3 and 4, 5, 6 and 7
3. I state that, the part of schedule property standing in
my name was required to be sold for financial necessity,
during the same transaction the defendant No.2/
respondent herein has lodged complaint against me for
entering into the same transaction and it is on that
movement I was made aware of fact that the suit bearing
O.S.No:88/2010 was partly decreed and immediately a
preferred an appeal in R.A.No: 06/2018 challenging and
judgment and decree by the time the first appeal was
preferred there was delay of three years four months. The
appellant herein has explained in detail in his application
for condoning the delay in R.A.No: 06/2018. Despite
sufficient cause shown in the application the first
appellate court has dismissed the appeal by rejecting the
application seeking delay condonation. Hence the present
second appeal is filed.
4. I state that, the impugned judgment and decree
passed in R.A.No: 6/2018 dated 15.11.2021 and the said
appeal was filed on 19.07.2018. It is submitted that from
the march 2020 till the end of 2021 there was pandemic
all over the country and I being a labour was finding
difficult for survival of myself and my family. It is because
of the pandemic and due to lack of legal knowledge I lost
track of first appeal in R.A.No: 06/2018.
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5. I state that, I am interested in prosecuting the present
appeal. I being a village rustic person and having no
knowledge of law, was under the impression that, there
would be any provision for filling second appeal
challenging the dismissal of first appeal.
6. I state that, due to pandemic there was no proper
communication between myself and the advocate who
was preferred first appeal. I was under the impression
that the first appeal is still pending consideration until I
was noticed to be present for survey by ADLR, Devadruga
as per order passed in F.D.P.No:3/2018 dated
15.12.2022. The copy of entire order sheet in
FDP.No:03/2010 is enclosed herewith for the kind perusal
of this Hon'ble Court.
7. I state that, immediately after receipt of notice for
survey in respect of suit schedule property, I approached
the advocate at Devadurga for further remedy and the
said advocate opined that, I can prefer appeal to the High
Court of Karnataka, Kalaburagi Bench and he also asked
me to obtain certified copy of entire records both in the
suit and of first appeal. Considering the advice of the
advocate, application were filed seeking certified copy of
judgment and decree and all other records pertaining to
the suit and first appeal. The certified copy of records
were obtained in the month of March 2023 and
immediately I was required to make necessary financial
arrangement for preferring the second appeal. It is called
because of aforesaid bonafide reasons, there is delay in
filling this second appeal. Hence it is most humble prayed
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that, considering the aforesaid reasons the delay in filling
the second appeal may be condone."
4. The reasons stated in the affidavit is that due to
pandemic the survivor of the appellant was difficult and for lack
of knowledge he could not prefer the present appeal in time. It
is relevant to state here that even before the first appellate
Court the appellant preferred appeal with a delay of more than
3 years. The unexplained part of delay by the appellant, made
the first appellate Court to arrive at a conclusion that there are
no sufficient cause shown to condone the inordinate delay of 3
years. The reasons assigned before this Court for condoning
the delay of 327 days as the judgment was passed on
November, 2021 and by then there was relaxation of the SOP
due to pandemic. The reasons stated do not appraise the
conscious of this Court. No lenient view can be taken by this
Court to condone the delay as the appellant was not diligent in
prosecuting the appeal even before the first appellate Court.
5. Inspite there being delay before this Court, in order
to see that substantial justice is been done and not denied, the
merits of the matter has been considered. A perusal of the
judgment and decree would indicate that the trial Court,
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considering the oral and documentary evidence, held that the
plaintiff is not entitled to claim share in entire land of 10 acres
7 guntas in R.S.No.58 and the plaintiff is entitled for share in
half portion of 5 acres 4 guntas. The first appellate Court being
the last fact finding Court has rightly appreciated and arrived at
a conclusion that for inordinate delay of 3 years no justifiable
reasons have been made out to condone the inordinate delay.
The approach of the first appellate Court does not warrant
interference by this Court. The appellant is unable to
substantiate his case regarding the substantial question of law
that arises for consideration. It is well settled law that
existence of sufficient cause to the satisfaction of the Court is a
condition set out for the courts to exercise its discretion in the
matter of condoning the delay. The first appellate Court has
rightly declined to condone the delay and dismissed the appeal
and even before this Court the appellant has not made out any
grounds to condone the delay in preferring the second appeal.
6. Accordingly, the appeal is dismissed on the ground
of delay for having not made out sufficient cause to condone
the delay of 327 days in preferring the appeal as well as on
merits.
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In view of the disposal of the appeal, I.A.No.2/2023 filed
for stay does not survive for consideration.
Sd/-
JUDGE
SWK
CT: VD
