Karnataka High Court
Krishnappa vs Venkataswamy on 4 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 2047 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.2047 OF 2016 (PAR)
BETWEEN:
1. KRISHNAPPA,
S/O SUBBANNA,
AGED ABOUT 49 YEARS,
SUBBANNA DEAD BY LR'S
2. PARVATHAMMA,
W/O LATE SUBBANNA,
AGED ABOUT 87 YEARS,
BOTH ARE RESIDENTS OF
KYATHAPPA BEEDHI, HARIGE,
SHIAMOGGA CITY - 577 201.
...APPELLANTS
(BY SRI. P.N. HARISH, ADVOCATE)
Digitally signed AND:
by ANUSHA V
Location: High
Court Of VENKATASWAMY
Karnataka
SINCE DEAD BY HIS LR'S
1. RENUKAMMA,
W/O LATE VENKATASWAMY,
AGED ABOUT 62 YEARS,
R/O KYATHAPPANNA BEEDHI,
4TH CROSS, VIDYANAGARA POST,
HARIGE EXTENSION,
SHIVAMOGGA CITY - 577 201.
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RSA No. 2047 of 2016
2. LEELAVATHI,
W/O TIRUVALLI HANUMANTHAPPA,
D/O LATE VENKATASWAMY,
AGED ABOUT 32 YEARS,
R/O NIDIGE VILLAGE,
4TH CROSS, RIGHT SIDE,
SHIVAMOGGA TALUK - 577 201.
3. LAKSHMI,
W/O KRISHNAPPA,
D/O LATE VENKATASWAMY,
AGED ABOUT 29 YEARS,
R/O VADDINAKOPPA, NEAR CAMP,
NEAR AMBEDKAR COLLEGE,
VIDYANAGARA POST,
SHIVAMOGGA TALUK - 577 201.
4. GOVINDA,
S/O LATE VENKATASWAMY,
AGED ABOUT 27 YEARS,
R/O KYATHAPPANA BEEDHI,
4TH CROSS, VIDYANAGARA POST,
HARIGE EXTENSION,
SHIVAMOGGA CITY - 577 201.
5. MALA,
D/O LATE VENKATASWAMY,
AGED ABOUT 29 YEARS,
R/O KYATHAPPANA BEEDHI,
4TH CROSS, VIDYANAGARA POST,
HARIGE EXTENSION,
SHIAMOGGA CITY - 577 201.
...RESPONDENTS
(BY SRI.GURURAJ R., ADVOCATE FOR R1 TO R5)
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RSA No. 2047 of 2016
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
ORDER DATED 24.08.2016 PASSED ON IA NO.1 IN RA
NO.45/2014 ON THE FILE OF THE III ADDL. DISTRICT JUDGE,
SHIVAMOGGA, DISMISSING IA NO.1 FILED UNDER ORDER 41
RULE 3-A OF CPC., R/W SEC.5 OF LIMITATION ACT.
CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 30.6.2006 PASSED IN OS
NO.272/1999 ON FILE OF THE I ADDL. CIVIL JUDGE (SR.DN)
AND CJM, SHIVAMOGGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED REIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 24.08.2016
passed by learned III Additional District Judge, Shivamogga in
R.A.no.45/2014 and judgment and decree dated 30.06.2006
passed by learned I Additional Senior Civil Judge and CJM,
Shivamogga in O.S.no.272/1999, this appeal is filed.
2. Case of plaintiffs in brief is as follows:
Appellants herein were plaintiffs in O.S.no.272/1999
which was filed for relief of declaration that plaintiffs were
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absolute owners of 'A' Schedule Property and for vacant
possession of 'B' Schedule Property by evicting defendant there
from. It was stated that plaintiffs were owners in possession of
property bearing khatha no.196/156, measuring 20X80 feet,
wherein plaintiffs had constructed a Mangalore tiled house
comprising two portions in an extent of 20X30 feet. It was
stated, when defendant-younger brother of plaintiff No.2 was
evicted from his rented house, plaintiffs had permitted him to
reside in western portion of 'A' Schedule Property on his
promise that he would vacate within a short period of time.
Thereafter, though plaintiffs had requested defendant to vacate
and deliver vacant possession to plaintiffs, same was not
complied, leading to filing of suit.
3. It was further stated that upon service of suit
summons, defendant entered appearance and filed written
statement denying plaint averments. It was stated that one
Venkatappa had four sons viz., Papanna, Ganganna, Siddanna
and Venkataswamy and said Venkatappa had a property at
Harige, measuring 40X80 feet. Same was partitioned with each
son getting 10X80 feet, who were in possession of their
respective extent. Plaintiff no.2 had thereafter, forcibly
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occupied portion of house property of Papanna, measuring
10X80 feet and after intestate death of Papanna without any
issues, plaintiffs claimed share in proportion of Papanna, with
intention to deprive defendant's share and filed suit.
4. Based on pleadings, trial Court framed following
issues:
1. Whether the description the suit property
mentioned in the plaint is correct?
2. Whether the valuation of the suit is correct and
the court fee paid therein is proper?
3. Whether the plaintiff proves the title over plaint
'B' schedule property as pleaded in plaint?
4. Whether the plaintiff is entitled for possession
of the plaint 'B' schedule property as pleaded?
5. What order or decree?
5. In support of their case, plaintiffs were examined as
PWs.1 and 2 and Exs.P1 to P16 were marked. Defendant did
not lead oral or documentary evidence.
6. On consideration, trial Court answered issues no.1,
3 and 4 in negative and issue no.2 in affirmative and issue no.5
by dismissing suit.
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7. Aggrieved thereby, plaintiffs filed R.A.no.45/2014.
As it was beyond period of limitation, I.A.no.1 was filed under
Order 41 Rule 3-A of CPC read with Section 5 of Limitation Act.
In affidavit filed in support of application, it was stated that
delay of 2946 days in filing appeal was on account of appellant
no.1 having moved to Chikkamagaluru to work in tea estate
and that he was not aware of result of suit until he returned,
immediately, after coming to know about it, sometime was
spent in making arrangements and appeal was filed.
8. It was submitted, appellant no.1 had also examined
himself along with two labourers from Dewan Estate, Yalagodu,
Chikkamagaluru, to establish that plaintiff was working in tea
estate. However, Court without proper consideration, merely by
referring to law regarding sufficient cause, first appellate Court
rejected application and consequently, dismissed appeal.
9. It was submitted that ratio in decision relied upon
by first appellate Court would indicate that it was not period of
delay, but whether cause assigned was sufficient and beyond
control of applicant. Therefore, sought for allowing appeal by
answering proposed substantial question no.5 in favour of
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appellants and to remand matter to trial Court for fresh
consideration.
10. On other hand, Sri Gururaj R., learned counsel for
respondent sought to justify impugned order and submitted
that there was enormous delay of 2946 days in filing appeal.
No proper reasons were assigned as explanation. It was
submitted, plaintiffs were aware of suit but failed to verify
stage and result. Though, plaintiffs had examined witnesses to
indicate that they were working, same by itself would not
establish that plaintiffs were unaware of judgment passed by
trial Court. First Appellate Court, on proper application of mind,
had rejected I.A.no.1 for condonation of delay and
consequently, no substantial question of law arose for
consideration and sought dismissal of appeal.
11. Heard learned counsel and perused impugned
judgment and decree and records.
12. From above, it is seen plaintiffs' suit for declaration
and possession was rejected on contest by judgment and
decree dated 30.06.2006. Suit was filed by appellant no.1
herein along with his father Subbanna. Appeal filed their
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against suffered from delay and dismissed by refusing
condonation.
13. Question that requires examination is whether there
was sufficient cause and despite same, first appellate Court
refused to condone delay. On perusal of copy of depositions of
appellants in support of I.A.no.1, copies of which were made
available for perusal of this Court, it is seen that appellant no.1
has stated that suit was filed by joining his father. On account
of poverty, he left along with his mother, two children and wife
to work in Dewan Estate, Yalagodu, Chikkamagaluru, as
labourers from August 2006 and returned to Shivamogga only
in month of March, 2014. Immediately after arrival to
Shivamogga, he realized result of suit, made arrangement and
preferred appeal.
14. However, it is seen that while appellant no.1 had
moved to work in Chikkamagaluru, his father had stayed back
and died about 4 years prior to appeal. During cross-
examination of appellant no.1, it is elicited that appellant no.1
had not met counsel who was conducting suit.
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15. PW-2 - Chandrappa, stated that appellant no.1 was
working in tea estate. But, PW-3 admitted that while working in
tea estate, appellant no.1 and his wife used to visit
Shivamogga once every one or two months. He denies
suggestion about knowledge of suit.
16. Hon'ble Supreme Court in Collector (LA) v. Katiji,
reported in (1987) 2 SCC 107; Mool Chandra v. Union of
India, reported in 2024 SCC OnLine SC 1878; Municipal
Corporation Ahmedabad v. Voltas Ltd., reported in AIR
1995 Gujarat 29; K.A. Manoharan v. P.K. Poulose,
reported in 2002 (3) TAC 135 and in Mahindra Lands and
Buildings Corporation v. Bhuthnath Banerjee, reported in
AIR 1964 SC 1336, have held it is not quantum of delay that
requires to be taken into account, but whether applicant had
sufficient cause for not filing appeal within time and whether it
was beyond his control. It is also observed normally Courts
should take liberal view. At same time, there is caution to verify
whether applicant had employed care and attention to avoid
delay.
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17. In instant case, appellant no.1 was party to suit,
suit was filed along with his father. Though, appellant no.1
claims to have left Shimogga just after disposal of suit on
30.06.2006, but, father of appellant no.1 had remained at
Shimogga. It is highly unlikely that appellant no.1 would not be
aware of result of suit as it is admitted by PW.3 that appellant
and his wife were visiting Shimogga every one or two months.
It is also noted that appellant no.2 in any case was aware of
result and died about four years prior to filing of appeal i.e. four
years after disposal of suit. In explanation offered, there is no
explanation why appeal could not be filed by appellant no.2 in
time. It is seen that appellant having engaged counsel and
contested suit cannot be permitted to claim lack of knowledge
of result merely on account of fact that one of plaintiff had
moved away to another town for work that too after disposal of
suit. Especially so, when there was continued visitation to
hometown. It is also seen that first appellate Court has taken
note of deposition of PW.1 and other witnesses while passing
order impugned. Delay cannot be condoned on mere asking
when there is no effort by applicant to mitigate same nor when
circumstances indicate case of deemed knowledge. Thus, there
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is proper application of law and mind by first appellate Court.
Hence, no substantial question of law as proposed arises for
consideration. Consequently, appeal is dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
PN,GRD
