Karnataka High Court

Smt. Mallamma vs Sri Motegowda on 22 October, 2024

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                                                    NC: 2024:KHC:42394
                                                  RSA No. 1287 of 2024




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                      BEFORE

                    THE HON'BLE MR JUSTICE ASHOK S.KINAGI

              REGULAR SECOND APPEAL NO. 1287 OF 2024 (PAR)

              BETWEEN:

              1.   SMT. MALLAMMA
                   W/O LATE BASAVEGOWDA
                   AGED ABOUT 76 YEARS

              2.   SMT BASAMMA
                   D/O LATE BASAVEGOWDA
                   AGED ABOUT 58 YEARS

              3.   SRI SHIVANNEGOWDA
                   S/O LATE BASAVEGOWDA
                   AGED ABOUT 61 YEARS
Digitally     4.   SRI KEMPASIDDEGOWDA
signed by R
DEEPA              S/O LATE BASAVEGOWDA
                   AGED ABOUT 54 YEARS
Location:
HIGH COURT
OF                 ALL ARE R/AT MARABALLIHUNDI VILLAGE,
KARNATAKA          JAYAPURA HOBLI, MYSURU TALUK
                   AND DISTRICT TALUK-570008
                                                           ...APPELLANTS
              (BY SRI. K P BHUVAN, ADVOCATE)

              AND:

              1.   SRI MOTEGOWDA
                   S/O NINGEGOWDA
                   AGED ABOUT 77 YEARS
                   R/AT MAMBALLI HUDI VILLAGE
                   JAYAPUR HOBLI, MYSURU TALUK - 570 008
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                                      RSA No. 1287 of 2024




2.   SMT SAKAMMA
     W/O LATE MARIGOWDA
     AGED ABOUT 58 YEARS

3.   SRI MANJUNATHA
     S/O LATE MARIGOWDA
     AGED ABOUT 43 YEARS

     RESPONDENT No.2 & 3 ARE
     RESIDING AT NUGGAHALLI VILLAGE
     BEERIHUNDI POST, YELAWALA HOBLI,
     MYSURU TALUK-570026

4.   SMT SAVITH
     W/O RAJESH K
     D/O LATE MARIGOWDA
     AGED ABOUT 37 YEARS,
     R/AT VARAKODU VILLAGE AND POST,
     VARUNA HOBLI
     MYSURU TALUK-570010

5.   SRI SHIVA
     S/O LATE MARIGOWDA
     AGED ABOUT 34 YEARS
     RESIDING AT NUGGAHALLI VILLAGE
     BEERIHUNDI POST, YELAWALA HOBLI,
     MYSURU TALUK-570026

6.   SRI MAHADEVA
     S/O LATE MARIGOWDA
     AGED ABOUT 59 YEARS

7.   SRI SANNAIAH
     S/O LATE MARIGOWDA
     AGED ABOUT 54 YEARS

     RESPONDENTS No.6 & 7 ARE
     RESIDING AT NUGGAHALLI VILLAGE
     BEERIHUNDI POST, YELAWALA HOBLI,
     MYSURU TALUK AND DISTRICT-570026
                                           ...RESPONDENTS
(BY SRI. RUPESH KUMAR S., ADVOCATE)
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                                               RSA No. 1287 of 2024




     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE ORDER DATED 12.07.2024 PASSED IN RA NO.168/2018
ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE, MYSURU, DISMISSING THE APPEAL AND FILED
AGAINST THE JUDGMENT AND DECREE DATED 03.07.2006
PASSED IN OS NO.454/2003 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE (SR.DN) MYSORE.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

                        ORAL JUDGMENT

This second appeal is filed by the appellants

challenging the order on I.A.No.I dated 12.07.2024 passed

in R.A.No.168/2018 by the learned IV Additional District

and Sessions Judge, Mysuru and the judgment and

preliminary decree dated 03.07.2006 passed in

O.S.No.454/2003 by the learned II Additional Civil Judge

(Sr. Dn.) and CJM, Mysore.

2. For convenience, parties are referred to as per

their ranking before the trial Court. The appellants are the

legal representatives of deceased defendant No.1,

respondent No.1 is the plaintiff, and other respondents are

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the legal representatives of deceased defendant No.2. The

plaintiff filed a suit for partition and separate possession

against the defendants.

3. The brief facts leading rise to the filing of this

appeal are as follows:

It is contended that the suit schedule properties are

the joint family properties of the plaintiff and the

defendants. The plaintiff and the defendants are members

of a Hindu undivided joint family, and no partition has

been effected between them. The plaintiff requested the

defendants to effect a partition, but the defendants

refused. Hence, a cause of action arose for the plaintiff to

file a suit for partition and separate possession.

4. Defendant No.1 filed a written statement and

admits that item Nos.1 and 2 are the properties of his

father, Siddegowda, and mother, Sannamma. He admits

that the plaintiff and defendant No.2 are his brother and

sister. It is denied that the plaintiff is in joint possession

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and enjoyment of the suit schedule properties. It is denied

that the defendant has concocted and created the

documents. It is further contended that Doddamalegowda

had taken the plaintiff 50 years back as his adopted son.

The plaintiff is residing in his house as the adopted son of

Doddamalegowda. He is not entitled to get any share in

the properties of the mother of defendant No.1. It is

contended that the plaintiff and his wife by name

Malamma, executed a deed and no objection certificate in

favour of defendant No.1 that they have no objection to

change the katha of suit schedule properties in favour of

defendant No.1 and defendant No.1 became the absolute

owner of the suit schedule properties. Hence, prays to

dismiss the suit.

5. Defendant No.2 filed the written statement

admitting that she is the sister of the plaintiff, and

defendant No.1 has admitted that item Nos.1 and 2 were

Sridhana properties of Sannamma and item No.3 was

purchased out of income derived from item Nos.1 and 2 of

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the suit schedule properties. She also claims she is entitled

to 1/3rd share in the suit schedule properties. Hence,

prayed to dismiss the suit.

6. The Trial Court, based on the above said

pleadings, framed the relevant issues.

7. To prove his case, the plaintiff examined

himself as PW.1 and marked five documents as Exs.P1 to

P5. In rebuttal, the defendants did not enter the witness

box, and no documents were marked. The trial Court, after

recording the evidence, hearing on both sides and

assessing oral and documentary evidence, decreed the suit

of the plaintiff and declared that the plaintiff is entitled to

partition and separate possession of his 1/3rd share in the

entire suit schedule properties as mentioned in the

schedule by metes and bounds. The legal representatives

of defendant No.1, aggrieved by the judgment and

preliminary decree passed in O.S.No.454/2003, preferred

an appeal in R.A.No.168/2018. The legal representatives

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of defendant No.1 filed an application under Section 5 of

the Limitation Act to condone the delay of 96 days in filing

the appeal.

8. The First Appellate Court, after hearing the

parties, has framed the points for consideration.

9. The first Appellate Court, on re-assessment of

oral and documentary evidence, rejected I.A.No.I filed by

the legal representatives of defendant No.2 under Section

5 of the Limitation Act and consequently, dismissed the

appeal vide judgment dated 12.07.2024. The legal

representatives of defendant No.1, aggrieved by the order

on I.A.No.I in R.A.No.168/2018 and the judgment and

decree passed in O.S.No.454/2003, have filed this regular

second appeal.

10. Heard the learned counsel for the legal

representatives of defendant No.1.

11. Learned counsel for the legal representatives of

defendant No.1 submits that the legal representatives of

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defendant No.1 could not file the appeal challenging the

judgment and preliminary decree within time. He submits

that the legal representatives are unaware of the

judgment passed in O.S.No.454/2003. He submits that the

legal representatives of defendant No.1 came to know only

when FDP was filed by respondent No.1 in FDP

No.10/2007. Hence, he submits that the legal

representatives have shown sufficient cause for not

preferring the appeal well in time. Hence, the First

Appellate Court has committed an error in rejecting

I.A.No.I. Hence, on these grounds, he prays to allow the

appeal.

12. Perused the records and considered the

submissions of learned counsel for legal representatives of

defendant No.1.

13. It is not disputed that respondent No.1 has filed

a suit in O.S.No.454/2003 for partition and separate

possession. The trial Court issued a summons. Pursuant to

the summons issued by the trial Court, defendant Nos.1

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and 2 appeared through counsel and filed the written

statement. The trial Court framed the issues, and

thereafter, the plaintiff was examined as PW.1. Learned

counsel for the defendant did not choose to cross-examine

PW.1; further, the defendants did not enter into the

witness box. The trial Court, considering the oral or

documentary evidence, decreed the suit of the plaintiff,

and it is declared that the plaintiff is entitled to partition

and separate possession of his 1/3rd share in the entire

suit schedule property vide judgment dated 03.07.2006.

During their lifetime defendants No.1 & 2, did not

challenge the judgment and preliminary decree passed in

O.S.No.454/2003. Defendant No.1 died in the year 2017,

wherein respondent No.1 filed FDP proceedings in

FDP No.10/2007. The defendants have appeared in the

FDP No.10/2007 despite of knowing the passing of

judgment in O.S.No.454/2003. The defendant did not

choose to challenge the judgment and decree passed in

O.S.No.454/2003. After the death of the defendants, the

legal representatives of defendant No.1 preferred an

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appeal in R.A.No.168/2018. From the perusal of the

affidavit enclosed to I.A.No.I, legal representatives of

defendant No.1 have not shown any sufficient cause to

condone the delay in filing the appeal after the lapse of 12

years from the date of passing the judgment. Thus, there

is an inordinate delay in approaching the First Appellate

Court.

14. The Hon'ble Apex Court in the case of

LINGESWARAN ETC. VS. THIRUNAGALINGAM reported in

SPECIAL LEAVE TO APPEAL (C) NO.2054-2055/2022 at

para Nos.5 and 5.1, which reads as under:

5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case

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of Popat Bahiru Goverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.

5.1 In the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157, in paragraph 14, it is observed and held as under:

"The law of limitation is founded on public policy. The limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation."

15. The Hon'ble Apex Court declined to condone the

delay of 435 days in filing the appeal. The appellants have

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not made sufficient cause to condone the delay of 12 years

in filing the appeal in R.A.No.168/2018.

16. Further, the Hon'ble Apex Court in the case of

CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE

BOARD VS. T.T. MURALI BABU reported in (2014) 4 SCC

108, at paragraph No.17 has held as under:

"In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van

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Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."

(Emphasis supplied)

17. Considering averments made in the affidavit

enclosed to I.A.No.I, delay for a reason does not declare

indulgence. Hence, on the ground of delay and laches, the

First Appellate Court was justified in rejecting I.A.No.I and

consequently dismissed the appeal. I do not find any error

in the order on I.A.No.I, the judgment and decree passed

by the trial Court or any substantial question of law that

arises for my consideration in this appeal.

18. In view of the above discussion, I proceed to

pass the following: