Karnataka High Court
Dharmappa S/O. Bharmappa Talawar vs Suvarnawwa W/O. Revanappa Angadi on 28 October, 2024
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NC: 2024:KHC-D:15770
RSA No. 5296 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5296 OF 2013 (SP-)
BETWEEN:
SRI. DHARMAPPA S/O. BHARMAPPA TALAWAR,
SINCE DECEASED BY HIS LRS.
1. SMT. SHIVAVVA W/O. UMESH BANNATTI,
AGED ABOUT: 45 YEARS,
OCC. HOUSEHOLD WORK,
2. SRI. JAYAPRAKASH NARAYANA,
S/O. UMESH BANNATTI,
AGED ABOUT: 28 YEARS,
OCC. AGRICULTURE,
VISHAL 3. SHILAHSHREE D/O. UMESH BANNATTI,
NINGAPPA
PATTIHAL AGED ABOUT: 24 YEARS,
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
OCC. HOUSEHOLD WORK,
Date: 2024.11.05
11:53:48 +0530
4. SRI. UDAYA SHANKAR S/O. UMESH BANNATTI,
AGED ABOUT: 22 YEARS, OCC: COOLIE,
5. SRI. JAYAPRADA D/O. UMESH BANNATTI,
AGED ABOUT: 20 YEARS, OCC: STUDENT,
ALL R/O. SHAYADALAGERI VILLAGE,
POST: TUGGALADONI, TQ. KUSHTAGI,
DIST. KOPPAL-584 166.
... APPELLANTS
(BY SRI. B SHARANABASAWA, ADVOCATE)
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RSA No. 5296 of 2013
AND:
1. SMT. SUVARNAWWA W/O. REVANAPPA ANGADI,
AGED ABOUT : 49 YEARS,
OCC. BUSINESS.
2. SRI. MALLAPPA S/O. REVANAPPA,
AGED ABOUT: 40 YEARS.
3. ASHOK S/O. RAVANAPPA,
AGED ABOUT: 37 YEARS.
4. SANGAPPA S/O. REVANAPPA
AGED ABOUT: 34 YEARS,
ALL ARE R/O. KHILLA ONI,
MUSEUM ROAD,
NEAR RAGHAVENDRA SWAMI TEMPLE,
BADAMI, TQ. BADAMI, DIST. BAGALKOT-584 915.
... RESPONDENTS
(BY SRI. S B MUTTALLI, SRI. SHRINIVAS M RAJU,
SRI. RAVIRAJ G KULKARNI, ADVOCATE FOR R1, R2, R4;
APPEAL ABATED AGAINST R3)
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO SET
ASIDE/ MODIFY THE JUDGMENT AND DECREE DATED
31.08.2004, PASSED BY THE LEARNED DISTRICT AND
SESSION JUDGE FAST TRACK COURT-II, KOPPAL, IN
R.A.NO.52/2004 AND THE JUDGMENT AND DECREE DATED
20.01.2001, PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.),
AT KUSHTAGI, IN O.S.NO.78/1993, BY ALLOWING THIS
APPEAL BY DECREEING THE SUIT OF THE PLAINTIFF BY
GRANTING THE RELIEF OF SPECIFIC PERFORMANCE OF AN
AGREEMENT OF SALE, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR INTERLOCUTORY
APPLICATION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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RSA No. 5296 of 2013
ORAL JUDGMENT
The present appeal is accompanied by I.A.No.1/2013
seeking to condone the inordinate delay of 3028 days in
preferring the present appeal.
2. In support of the application in I.A.No.1/2013,
an affidavit is sworn in by one Sri Jayaprakash Narayana
S/o. Umesh Bannatti, appellant No.2 in the present
appeal. The relevant portion of the affidavit is culled out
and extracted hereunder:
"3. It is respectfully submitted that, my grandfather
i.e., Sri. Dharmappa Talwar, has entered into an
agreement of sale with the defendants and he was
put in possession of the land as on the date of
agreement sale. That, myself and my other sisters
and brother were minor and we were not having
knowledge about the pendency of the suit or an
appeal before this Hon'ble Court. The appellant No. 1
Smt. Shivavva is my mother and she is the daughter
late Dharmappa Talwar, since she is an illiterate lady
had no knowledge about the transaction between the
plaintiff and defendants and she was not aware of any
of the proceedings before any courts. Since the late
Dharmappa Talwar who is the plaintiff was looking
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after the affairs of entire family has not disclosed
about the transaction or dispute before any of the
family members during his lifetime.
4. It is respectfully submitted that, the defendants
have filed R.S.A. No. 323/2005 and in the appeal the
defendants have not filed an application to bring the
appellants as legal representatives of the deceased
plaintiff and without disclosing the same they got the
appeal dismissed as having abated. This fact was not
known to the appellants. That, very recently the
respondents / defendants have started interference
with the peaceful possession and enjoyment of the
suit land by the appellants. The respondents have
also made an application before the Tahasildar for
change of revenue entries in their names. That, on
service of notice and in view of the interference by
the respondents, the appellants have enquired in the
courts and they came to know about the proceedings
and dismissal of R.S.A. No. 323/2005. Thereafter the
appellants have contacted the present advocate who
has appeared in R.S.A. No. 323/2005 and on enquiry
the appellants came to know that, in spite of several
reminders by the advocate Sri. Dharmappa Talwar
has not given further instructions in the proceedings
in R.S.A. No. 323/2005 and the advocate was not
aware the death or the existence of the legal
representatives of the deceased. Now after coming to
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know about all the said facts, the appellants have
approached the advocate and requested him to file an
appeal before this Hon'ble Court challenging the
judgment and decree, passed by the courts below and
pressing for the relief of specific performance of an
agreement of sale, on the ground that, the appellants
are in peaceful possession, enjoyment and in personal
cultivation of the land in question. The advocate after
going through the records of possession of the
appellants has filed this appeal without making any
further delay. Therefore the delay in filing the Appeal
is not an intentional or deliberate one and it is for the
aforesaid reasons. Under these circumstances it is
just and necessary to condone the delay in filing the
top noted Appeal. If the delay is condoned and the
appeal is heard on merits no hardship would be
caused to the other side."
3. As extracted above the reasons do not indicate
any sufficient ground to condone inordinate delay of 3,028
days in preferring the appeal. It is relevant to state that
the appellant is claiming to be the legal heir of deceased
Dharmappa S/o. Bharamma Talawar, who was the plaintiff
before the trial Court, suit was one for specific
performance of contract, the suit came to be dismissed,
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appeal was preferred by Dharmappa Talawar before the
First Appellate Court in RA.52/2004, on re-appreciation
and re-consideration, the First Appellate Court partly
allowed the appeal, directing refund of earnest money by
the judgment and decree dated 31.08.2004. The present
appeal is preferred by the legal heirs of the original
plaintiff Dharmappa Talawar contending that they had no
knowledge about the disposal of the appeal.
4. It is relevant to state here that Dharmappa
Talawar appellant in RA.No.52/2004 died on 08.09.2010
and at the time of disposal of the appeal RA No.52/2004,
Dharmappa Talawar was very much alive and he did not
choose to prefer any appeal before this Court. No reasons
are forthcoming for the delay from the date of disposal of
RA No.52/2004 i.e., on 31.08.2004 to 08.09.2010, date of
death of Dharmappa Talawar. The original plaintiff -
Dharmappa Talawar having not chosen to prefer any
appeal against the judgment and decree in RA
No.52/2004, the legal heirs of Dharmappa Talawar with an
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inordinate delay of 3,028 days in preferring the appeal
without making out any sufficient grounds to condone the
delay is not sustainable. The reasons indicated by the
appellants in the affidavit to the application IA No.1/2013
is not appraisable to this Court to condone the inordinate
delay of 3,028 days in preferring the appeal.
5. It is well settled proposition of law that the
existence of "sufficient cause" to the satisfaction of the
Court is the condition set for the Court to exercise its
discretion in the matter of condoning delay. In the
circumstances, the cause stated in the affidavit cannot
said to be bonafide or sufficient cause. Despite the delay,
this Court has examined the appeal on merits to ensure
justice is not denied on ground of limitation. There is no
merit in this second appeal. Accordingly, the appeal is
dismissed on the ground of delay as well as on merits.
Accordingly, IA No.1/2013 is dismissed and consequently
the appeal stands dismissed.
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6. In light of dismissal pending IA's if any would
not survive for consideration.
Sd/-
(JUSTICE K.S.HEMALEKHA)
AT
CT:PA
