Karnataka High Court
Smt. C. Leelavathi vs Sri. Shantharaju on 31 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:18614
RSA No. 151 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.151 OF 2018 (SP)
BETWEEN:
SMT. C. LEELAVATHI
W/O. KUNNAIAH,
AGED ABOUT 59 YEARS,
R/AT NO.351, ASHOKA ROAD,
LASHKAR MOHALLA,
MYSORE-570 001,
REP. BY G.P.A. HOLDER,
SRI. KUNNAIAH,
S/O. LATE SIDDAIAH,
AGED ABOUT 69 YEARS,
R/AT NO. 351, ASHOKA ROAD,
Digitally signed LASHKAR MOHALLA,
by DEVIKA M
Location: HIGH MYSORE-570 001.
COURT OF ...APPELLANT
KARNATAKA
(BY SRI B R SRINIVASA GOWDA, ADVOCATE)
AND:
1. SRI. SHANTHARAJU
S/O. LATE CHANNAIAH,
AGED ABOUT 57 YEARS,
2. SUVARNA
D/O. SHANTHARAJU,
AGED ABOUT 31 YEARS,
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RSA No. 151 of 2018
3. VASANTHA
D/O. SHANTHARAJU,
AGED ABOUT 28 YEARS,
4. MANJULA
D/O. SHANTHARAJU,
AGED ABOUT 26 YEARS,
5. RAJU
S/O. SHANTHARAJU,
AGED ABOUT 24 YEARS,
6. SHANTHA
D/O. SHANTHARAJU,
AGED ABOUT 22 YEARS,
7. KIRAN
S/O. SHANTHARAJU,
AGED ABOUT 20 YEARS,
R1 TO 7 ARE R/AT CHIKKA ANKANAHALI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
8. SHANKARA
S/O. MANCHANNA,
AGED ABOUT 46 YEARS,
R/AT NO.3605,
LAKSHMIDEVAMMA BEEDHI,
2ND CROSS, VEERANAGERE,
LASHKAR MOHALLA,
MYSURU-570 001.
...RESPONDENTS
(R1 TO R7 ARE SEREVED & UNREPRESENTED;
NOTICE AGAINST R8 IS H/S V/O/D 17.04.2023)
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NC: 2024:KHC:18614
RSA No. 151 of 2018
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
ORDER DTD 30.10.2017 PASSED ON IA.NO.1 IN
R.A.NO.51/2017 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MYSURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the appellant.
2. The counsel for the appellant would vehemently
contend that the First Appellate Court has committed an
error in dismissing I.A.No.1 filed under Section 5 of the
Limitation Act making an observation that the appellant is
negligent and has not acted diligently and also committed
an error in dismissing the appeal by confirming the
judgment and decree of the Trial Court hence, the very
approach of the First Appellate Court is erroneous. Hence,
prayed this Court to reconsider the matter framing the
substantial questions of law.
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3. Heard the learned counsel appearing for the
appellant and also perused the material available on
record. No doubt, the appellant has filed the suit for the
relief of specific performance and the Trial Court comes to
the conclusion that defendant has executed an agreement
of sale by receiving an advance sale consideration of
Rs.60,000/- on 02.02.2005 and also comes to the
conclusion that the appellant/plaintiff was ready and
willing to perform her part of contract. While answering
Issue No.3, the Trial Court comes to the conclusion that
the defendants have executed a fresh agreement of sale
on 04.07.2005 in respect of the previous agreement and
same is proved by the plaintiff. The Trial Court held that
the defendants have proved that the suit schedule
property is the ancestral and joint family property of the
defendants who was not having any exclusive right to
enter into the sale agreement and ordered to repay the
amount of Rs.1,20,000/- to the plaintiff within two months
from the date of the order. If the defendants fail to pay
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the said amount within two months, then the defendants
are liable to pay interest at the rate of 6% p.a.
4. No doubt, the judgment of the Trial Court was
passed on 26.02.2011 and the appeal was filed in the year
2017 challenging the order of the Trial Court hence, it
discloses that there was a delay of 6 years 26 days in filing
the appeal. The First Appellate Court also while
considering the appeal, allowed the appellant to lead the
evidence and the appellant also examined her GPA holder
as PW1 and got marked the documents at Ex.P1 and P2.
The First Appellate Court also observed that the judgment
was passed in the year 2011 by the Trial Court and the
appeal was filed in the year 2017 and having considered
the evidence of PW1 and two documents, the First
Appellate Court comes to the conclusion that the appellant
was in patient from 14.07.2012 to 19.07.2012 for fever at
Apollo BGS hospital, Mysuru. With regard to the further
delay is concerned i.e., from 2013 to 2017, the First
Appellate Court comes to the conclusion that the appellant
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has not stated any ground for not filing the appeal within
time though they were in Mysuru during the said period
and considering the material on record, the First Appellate
Court comes to the conclusion that each day delay has not
been explained and also sufficient cause has not been
shown to condone the delay by the appellant. Hence,
dismissed I.A.No.1 filed under Section 5 of the Limitation
Act on the ground that there is a delay of 6 years 26 days
in filing the appeal. Being aggrieved by the said judgment
and decree of dismissal of the first appeal, this second
appeal is filed.
5. The very contention of the learned counsel for
the appellant is that the First Appellate Court committed
an error in dismissing the appeal and the finding of First
Appellate Court is contrary to law and the facts of the case
is not correct. The First Appellate Court has given the
reason while rejecting the application filed under Section 5
of the Limitation Act in paragraphs 11 and 12 of the
judgment and the delay from 2011 to 2017 has not been
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explained except stating that the appellant has admitted in
the hospital in the year 2012 and also made an
observation that from 2013 to 2017, no reasons are
assigned for condoning of delay in filing the appeal. When
such being the case, I do not find any grounds to frame
any substantial question of law when the inordinate delay
has not been explained by the appellant before the First
Appellate Court. Hence, no substantial question of law to
frame by invoking Section 100 of CPC.
6. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
SN/MD
