Karnataka High Court
Kannappa S/O Mariyappa Mulimani Since ... vs Manohar S/O Siddlingappa Goudru on 31 May, 2024
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NC: 2024:KHC-D:7251
WP No. 102609 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 102609 OF 2024 (GM-CPC)
BETWEEN:
KANNAPPA S/O. MARIYAPPA MULIMANI,
SINCE DEAD BY HIS LR'S.
MALLIKARJUN S/O. KANNAPPA,
AGE: 54 YEARS, OCC: BUSINESS,
R/O. M.C.COLONY, A-BLOCK,
NEAR KALA MANDIR,
DAVANAGERE, DIST: DAVANAGERE.
...PETITIONER
(BY SRI. NAGANGOUDA R. KUPPELUR, ADVOCATE)
AND:
1. MANOHAR S/O. SIDDLINGAPPA GOUDRU,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. KALENAHALLI VILLAGE, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA-583021.
2. M. MARUTI S/O. GULAPPA MAHADEVENNAVAR,
AGE: 52 YEARS, OCC: BUSINESS,
YASHAVANT
R/O. KURUBAGERI CROSS, HUGGER ONI,
NARAYANKAR RANEBENNUR, DIST: HAVERI - 581116.
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH
3. BASAVARAJA S/O. BULLAPPA MAHADEVANNAVAR,
COURT OF
KARNATAKA,
DHARWAD BENCH
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. M.C.COLONY, A-BLOCK,
NEAR KALA MANDIR, DAVANAGERE,
DIST: DAVANAGERE - 583102.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 03.10.2023,
PASSED BY THE LEARNED 2ND ADDITIONAL SENIOR CIVIL JUDGE
AND JMFC, RANEBENNUR ON IA NO.1/2018 IN OS NO.61/2018, VIDE
ANNEXURE-E.
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NC: 2024:KHC-D:7251
WP No. 102609 of 2024
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This is the 2nd defendant's writ petition assailing the order
of the appellate Court in allowing the application filed under
Section 5 of Limitation act, 1963 and condoning the delay of
1076 days in filing the regular appeal by the
respondents/plaintiffs.
2) Heard the learned counsel for the petitioner and
perused the order under challenge.
3) There is an inordinate delay in preferring an appeal.
However, the respondent, while leading evidence relating to
delay of 1076 days, has produced medical records indicating
that the brother of respondent was hospitalized at Kasturba
Hospital, Manipal. To substantiate the same, documents at
Exhibits-P8 to P10 are produced. These medical records are not
disputed by the present petitioner/2nd defendant. One more
relevant aspect which clinches the issue is also recorded by the
appellate Court at paragraph-13 of the order under challenge.
4) The petitioner/2nd defendant, who is a relative of
respondent/plaintiff, has admitted that there was no intentional
delay in preferring the appeal. If these significant details are
NC: 2024:KHC-D:7251
taken into account, then this Court, is not inclined to examine
the veracity of the materials placed on record by the
respondent/plaintiff while seeking condonation of delay in filing
a regular appeal. The appellate Court having recorded evidence
of the parties and having taken cognizance of medical evidence
and the statement made by the 2nd defendant, has thought it fit
to exercise discretion in favor of plaintiff. If appellate Court has
adopted leniency and the delay is condoned, no serious
prejudice is caused to the petitioner. The petitioner/2nd
defendant can always take a judgment on merits. Therefore,
this Court is not inclined to grant any indulgence under Article
227 of the Constitution of India. According the writ petition
stands dismissed.
5) In view of disposal of the petition, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
JUDGE
PMP
