Karnataka High Court
Kallappa Basappa Madari vs Ningavva D/O. Kallappa Madari on 6 November, 2024
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NC: 2024:KHC-D:16190
RSA No. 100439 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100439 OF 2014 (PAR)
BETWEEN:
KALLAPPA BASAPPA MADARI
AGE: 47 YEARS, OCC. AGRICULTURIST,
R/O. BELUR VILLAGE,
TQ AND DIST. DHARWAD-580011.
...APPELLANT
(BY SRI. J. S. SHETTY, ADVOCATE)
AND:
1. NINGAVVA D/O. KALLAPPA MADARI
AFTER MARRIAGE CALLED AND KNOW BY NAME
SMT. NINGAVVA W/O. KALLAPPA SINGANHALLI,
AGE: 27 YEARS, OCC. HOUSEHOLD WORK
R/O. TAVARGERI VILLAGE, TQ. KALAGHATAGI,
Digitally
signed by
VISHAL
DIST. DHARWAD-581204.
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.20
12:15:00
+0530 2. SHIVAPPA S/O. BASAPPA MADARI,
AGE: 48 YEARS, OCC. AGRICULTURIST,
R/O. BELUR VILLAGE, TQ AND DIST. DHARWAD.
NOW AT PURA VILLAGE,
POST OFFICE: LINGANAMATH,
TQ. KHANAPUR, DIST. BELGAUM-591302.
...RESPONDENTS
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 12.06.2014 PASSED IN
R.A.NO.91/2013 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS AND SPL JUDGE, AT DHARWAD, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED
02.08.2008 AND THE DECREE PASSED IN O.S.NO.13/2007 ON THE
FILE OF THE III ADDL. CIVIL JUDGE (SR.DN.) AND CJM, DHARWAD,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
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NC: 2024:KHC-D:16190
RSA No. 100439 of 2014
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Defendant No.1 is before this Court in this regular
second appeal.
2. Suit for partition and separate possession
seeking 2/3rd share came to be decreed, defendant No.1
preferred RA No.338/2009 against the judgment and
decree of the trial Court, the said appeal came to be
dismissed on merits. Defendant No.1 again challenged the
very said judgment and decree dated 02.08.2008 passed
in OS No.13/2007 in RA No.91/2013 contending that he
came to know about the judgment and decree in OS
No.13/2007 on 01.08.2013.
3. The First Appellate Court noting that the
appellant has not approached the Court with a clean
hands, observed that once the appeal is already been
dismissed on the ground of limitation, another appeal
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being filed on the same ground against the said judgment
and decree in OS No.13/2007. The appeal preferred by the
appellant in RA No.91/2013 was with a delay of 05 years
14 days, considering all these aspects, the First Appellate
Court dismissed the appeal preferred by the appellant on
the ground of delay.
4. As could be seen from the material on record,
that the appellant suppressing the fact about his appeal
already been dismissed on 19.03.2010, has preferred
another appeal in RA No.91/2013, against which the
present regular second appeal arise. The appeal has been
rightly dismissed by the First Appellate Court has no
sufficient ground either to condone the delay and on the
ground of suppression of fact, the First Appellate Court
observed at para No.17 as under:
"17. That apart, the respondents have produced
the CC of order sheet in RA No.338/09 filed by the
present appellant against the same judgment and
decree passed in this case. The respondents have
also produced the CC of order sheet in the said
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appeal. These two documents clearly indicate that
the present appellant had challenged the judgment
and decree under this appeal on 19-09-2009 itself.
The order sheet in the said appeal dated:
19-03-2010 indicates that the appeal filed by the
appellant came to be dismissed on the ground of
limitation. Suppressing this material fact once
again the appellant has filed this appeal and
application contending that he came to know
about the judgment and decree on 01-08-2013.
Therefore, the appellant has not approached this
court with clean hands. When once the appeal filed
by the appellant came to be dismissed, he cannot
file another appeal on the same grounds against
the same judgment and decree. The matter has
already attained its finality. Therefore, following
principles laid down by the Hon'ble High Court of
Karnataka reported in North East Karnataka Road
Transport Corporation Sarige Sadan Gulbarga Vs.
Ganapati 2012 (4) AIR Kar R 700, B C
Krishnappa, Chikka Thimmaiah Vs. The Chief
Traffic Manager, BMTC., Central Office 2012 (4)
AIR Kar R 11(DBN). A.V.Chandrashekharappa
and others Vs. SLAO City Improvement Trust
Board, Davanagere 2011 (4) AIR Kar R 326. I
hold that the appellant has failed to show sufficient
cause to condone the delay. Knowingly full well
about the judgment and decree in 2010 itself the
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appellant has filed this appeal in 2012 making
certain baseless allegations against his advocate.
If really the appellant was diligent definitely he
could have filed the appeal well within time. From
the records it appears that just to avoid to give
the genuine share of respondents who are none
else but his wife and daughter the appellant has
filed this appeal without any substance just to
protract the matter. No valid and cogent reasons
are assigned by the appellant to condone the
delay. Hence, I answer point No.1 in the
NEGATIVE."
Emphasis supplied
5. This Court is of the considered view that the
cost needs to be imposed on the appellant for abusing the
process of law and accordingly, this Court pass the
following:
ORDER
The Regular Second Appeal is hereby
dismissed with cost of Rs.20,000/-
payable to the Karnataka Legal Services
Authority Dharwad Bench, Dharwad, within
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four weeks, failing to pay the cost, the
State to recover the same as a land
revenue.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ
CT:PA
