Karnataka High Court

Smt Mahadevi W/O Shiddappa Bagil vs Smt Gourawwa W/O Ningappa Kamaladinni on 3 February, 2025

                                                       -1-
                                                                 NC: 2025:KHC-D:2103
                                                             RSA No. 100426 of 2024




                                       IN THE HIGH COURT OF KARNATAKA,

                                               DHARWAD BENCH

                                   DATED THIS THE 3RD DAY OF FEBRUARY, 2025

                                                    BEFORE

                                     THE HON'BLE MR. JUSTICE E.S.INDIRESH

                                 REGULAR SECOND APPEAL NO. 100426 OF 2024
                                               (PAR/POS)

                            BETWEEN:

                                 SMT. MAHADEVI W/O. SHIDDAPPA BAGIL,
                                 AGE. 59 YEARS, OCC. COOLIE,
                                 R/O. KALLOLI VILLAGE- 591224,
                                 TQ. MUDALAGI, DIST. BELAGAVI.
                                                                         ...APPELLANT
                            (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)

                            AND:

                            1.   SMT. GOURAWWA W/O. NINGAPPA KAMALADINNI,
                                 AGE. 52 YEARS, OCCU. AGRICULTURE,
                                 R/O. KALLOLI VILLAGE- 591224,
VN                               TQ. MUDALAGI, DIST. BELAGAVI.
BADIGER
Digitally signed by V N
BADIGER
Location: High Court of
                            2.   SMT. LAXMAWWA W/O. LAXMAPPA HOSAMANI,
Karnataka, Dharwad Bench
Date: 2025.02.05 15:16:57
+0530
                                 AGE. 50 YEARS, OCC. AGRICULTURE,
                                 R/O. KALLOLI VILLAGE- 591224,
                                 TQ. MUDALAGI, DIST. BELAGAVI.

                            3.   SMT. GANGAWWA W/O. YALLAPPA KHANATTI,
                                 AGE. 48 YEARS, OCCU. AGRICULTURE,
                                 R/O. KALLOLLI VILLAGE- 591224,
                                 TQ. MUDALAGI, DIST. BELAGAVI.

                            4.   SMT. SHARAWWA GOURAWWA
                                 D/O. BHIMAPPA KAMALADINNI,
                                 AGE. 46 YEARS, OCCU. AGRICULTURE,
                                    -2-
                                               NC: 2025:KHC-D:2103
                                         RSA No. 100426 of 2024




    R/O. KALLOLLI VILLAGE- 591224,
    TQ. MUDALAGI, DIST. BELAGAVI.
                                         ...RESPONDENTS
(BY SRI L.M. KURAHATTI, ADVOCATE FOR R2 & R4,
    NOTICE TO R1 IS SERVED AND UNREPRESENTED,
    NOTICE TO R3 IS HELD SUFFICIENT)

      THIS RSA FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK
IN R.A. NO.50/2022 DATED 10.04.2024 AND ALSO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 01.02.2016
PASSED IN O.S. NO.144/2007 PASSED BY THE ADDITIONAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
GOKAK AND DECREE THE SUIT IN O.S.NO.144/2007 IN THE
INTEREST OF JUSTICE AND EQUITY.


      THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, ORDERS WAS MADE THEREIN AS UNDER:


                      ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)

This appeal is preferred by the plaintiff challenging the

judgment and decree dated 10.04.2024 in RA No.50/2022 on

the file of I Additional Senior Civil Judge, Gokak (for short,

hereinafter referred to as 'First Appellate Court), dismissing the

appeal and confirming the judgment and decree dated

01.02.2016 in OS No.144/2007 on the file of Additional Civil

NC: 2025:KHC-D:2103

Judge and JMFC, Gokak (for short, hereinafter referred to as

'Trial Court') dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

3. It is the case of the plaintiff that the plaintiff and

defendants are the children of Bhimappa, who died leaving

behind the suit schedule property to be succeeded by the

plaintiff and defendants. The defendants denied the share of

the plaintiff and as such the plaintiff has filed OS No.144/2007

before the Trial Court seeking relief of partition and separate

possession in respect of the suit schedule properties.

4. On service of notice, the defendants entered

appearance however, not contested the matter.

5. The Trial Court based on pleadings, has formulated

the points for consideration. In order to establish their case

plaintiff has examined two witnesses as PW1 and PW2 and

produced 07 documents and same were marked as Ex.P.1 to

P7. No evidenced on the part of the defendants.

6. The Trial Court after considering the material on

record by judgment and decree dated 01.02.2016, dismissed

the suit. Being aggrieved by the same, the plaintiff has

NC: 2025:KHC-D:2103

preferred RA No.50/2022 before the First Appellate Court. In

view of delay in filing the appeal, plaintiff/appellant has filed

application in IA No.1 under Section 5 of Limitation Act, seeking

condonation of the delay. The said application was dismissed by

the First Appellate Court, consequently, the appeal fails. Feeling

aggrieved by the same, the plaintiff has preferred this Regular

Second Appeal.

7. This Court on 01.02.2025 formulated the following

substantial question of law;

"1) Whether the First Appellate Court has committed an error in not considering the sufficient cause "under section 5 of the Limitation Act"?

d) Whether the First Appellate Court has committed an error in dismissing the appeal without considering the fact that the suit is one for relief of partition?"

8. I have heard Sri. Shriharsh A. Neelopant, learned

counsel appearing for the appellant and Sri. L. M. Kurahatti,

learned counsel appearing for the respondent Nos.2 and 4.

9. It is submitted by learned counsel appearing for the

appellant that the suit filed by the plaintiff seeking relief of

partition and separate possession and therefore, the First

NC: 2025:KHC-D:2103

Appellate Court ought to have considered the reasons set out in

the affidavit accompanying application in IA No.1 liberally and

accordingly, sought for interference of this Court.

10. Per contra, learned counsel appearing for the

respondents, sought to justify the impugned judgment and

decree passed by the Courts below.

11. In the light of the submission made by learned

counsel appearing for the parties, it is not in dispute that the

appellant herein is the plaintiff, filed suit seeking relief of

partition and separate possession in respect of the suit

schedule properties. Suit came to be dismissed and as such the

plaintiff has filed RA No.50/2022. The appellant herein has

stated that she was ill-health and due to pandemic Covid - 19,

has not filed the appeal in time.

12. Considering the nature of relief sought for by the

appellant though there is delay of 6 and ½ years in preferring

the appeal however, considering the reasons set out in the

affidavit accompanying the application by the appellant, filed

under Section 5 of Limitation Act, I am of the view that,

'sufficient cause' has been shown to condone the delay in

preferring the appeal. It is also to be noted that the appellant

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was diligent in pursuing the proceedings however, on account

of ill-health and prolonged medical requirement, appeal was not

filed within time, however, same could be compensated by

imposing reasonable costs to the appellant taking into

consideration the arguments advanced by the learned counsel

appearing for the respondents.

13. In that view of the matter, following the declaration

of law made by Hon'ble Supreme Court in the case of the

Shakuntala Devi Jain Vs. Kuntal Kumari and Others1, and

in the case of Esha Bhattacharjee Vs. Managing Committee

of Raghunathpur Nafar Academy and Others2, the

appellant has made out a case for interference and the

substantial question of law framed above favours the

plaintiff/appellant herein. Hence, I pass the following:

ORDER

i. Appeal is allowed.

ii. Judgment and decree dated 10.04.2024 in

RA No.50/2022 on the file I Additional Senior Civil

Judge, Gokak, is hereby set aside by allowing IA

AIR 1969 SC 575

(2013) 12 SCC 649

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No.1 filed by the appellant herein under Section 5

of Limitation Act before the Family Court subject to

the appellant/plaintiff is directed to pay costs of

Rs.10,000/- to the defendants / respondents

herein within a period of four weeks from the

receipt of this order.