Karnataka High Court
Sri Hallikeri Chandrappa S/O ... vs Smt. Dyamawwa Malilard W/O Tirakappa ... on 13 February, 2025
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NC: 2025:KHC-D:2935
RSA No. 100622 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100622 OF 2024 (PAR-)
BETWEEN:
SRI. HALLIKERI CHANDRAPPA
S/O. FAKKIRAPPA,
AGE. 52 YEARS
OCC. AGRICULTURIST,
R/O. CHRISTAHALLI VILLAGE,
TQ. HARAPANAHALLI,
DIST. VIJAYANAGAR - 583137.
...APPELLANT
(BY SRI. S. N. BANAKAR, ADVOCATE)
AND:
1. SMT. DYAMAWWA MALILARD
W/O. TIRAKAPPA MAILARD
AGE. 66 YEARS,
OCC. HOUSEHOLD WORK,
VN
R/O. HARANAGIRI VILLAGE,
BADIGER TQ. RANEBENNUR,
DIST.HAVERI.
Digitally signed 2. SMT. HOLEYAWWA
by V N
BADIGER W/O. SHEKAPPA TALAWAR,
Location: High
Court of
Karnataka,
AGE. 65 YEARS,
Dharwad Bench
Date: OCC. HOUSEHOLD WORK,
2025.02.15
12:39:49 +0530 R/O. HARANAGIRI VILLAGE,
TQ. RANEBENNUR,
DIST. HAVERI.
3. SMT. HANUMAWWA
W/O. KALLAPPA TALAWAR,
AGE. 61 YEARS,
OCC. HOUSEHOLD WORK,
R/O. HARANAGIRI VILLAGE,
TQ. RANEBENNUR,
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NC: 2025:KHC-D:2935
RSA No. 100622 of 2024
DIST. HAVERI.
4. SRI. RAMAPPA
S/O. BASAPPA HALLIKERI,
AGE. 70 YEARS,
OCC. AGRICULTURIST,
R/O. HARANAGIRI VILLAGE,
TQ. RANEBENNUR,
DIST. HAVERI.
5. SRI. ASHOK
S/O. BASAPPA HALLIKERI,
AGE. 58 YEARS,
OCC. AGRICULTURIST,
R/O. HARANAGIRI VILLAGE,
TQ. RANEBENNUR,
DIST. HAVERI.
6. SRI. DEVENDRAPPA HALLIKERI
S/O. BASAPPA HALLIKERI,
AGE. 56 YEARS,
OCC. AGRICULTURIST,
R/O. HARANAGIRI VILLAGE,
TQ. RANEBENNUR,
DIST. HAVERI.
...RESPONDENTS
(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R4 TO R6;
R1 TO R3 ARE SERVED AND UNREPRESENTED)
------
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE, PRAYING TO CALL FOR RECORDS ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND I ADDL. JMFC., RANEBENNUR IN
O.S.NO.422/2013 DISPOSEd OF ON 01.08.2018 AND CALL FOR
RECORDS ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE,
RANEBENNUR DATED 08.06.2020 IN R.A.NO. 92/2018 AND TO SET
ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN
R.A.NO.92/2018 BY THE II ADDL. SENIOR CIVIL JUDGE,
RANEBENNUR DATED 08.06.2020, JMFC., RANEBENNUR AND TO
RESTORE THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL
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NC: 2025:KHC-D:2935
RSA No. 100622 of 2024
CIVIL JUDGE AND I ADDL. JMFC., RANEBENNUR DATED 01.08.2018
IN O.S.NO.422/2013 AND ALLOW THIS APPEAL WITH EXEMPLARY
COSTS BY ALLOWING THIS R.S.A., TO MEET THE ENDS OF JUSTICE
AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the defendant No.4
challenging the judgment and decree dated
08.06.2020 passed in RA No.92 of 2018 on the file of
the II Additional Senior Civil Judge Ranebennur,
setting aside judgment and decree dated 01.08.2018
passed in OS No.422 of 2013 on the file of the
Principal Civil Judge and JMFC, Ranebennur,
dismissing the suit of the plaintiffs.
2. For the sake of convenience, the parties in
this appeal shall be referred to in terms of their status
and ranking before the trial Court.
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3. As there is delay of 805 days in filing the
appeal, learned counsel appearing for the appellant
has filed IA No.1 of 2024, seeking condonation of
delay. The application is opposed by the learned
counsel appearing for the respondents by filing
statement of objections.
4. I have heard Sri S.N. Banakar, learned
counsel appearing for the appellant and Miss. Vinaya
Kuppelur, learned counsel appearing for the
respondents 4 to 6.
5. Sri. S.N. Banakar, learned counsel
appearing for the appellant invited the attention of the
court to paragraph 6 of the affidavit in IA No.1 of
2024 and contended that, the appeal was heard by
the First Appellate Court erroneously, wherein, the
notice has not been issued by the Civil Court in the
while considering the material on record. He further
submitted that, since the notice has not been issued
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to the appellant herein in RA No.92 of 2018, the
reasons assigned by the First Appellate Court requires
to be interfered with in this appeal.
6. Per contra, Miss. Vinaya Kuppelur, learned
counsel appearing for the respondents 4 to 6, has filed
a memo long with the order dated 23.07.2024 in
Civil.Misc.No.4 of 2021 on the file of II Additional
Senior Civil Judge and JFMC, Ranebennur and
submitted that, the notice in RA No.92 of 2018 was
served on the petitioner in the said Miscellaneous
Petition, who is the appellant in this appeal and
accordingly, she submitted that as there is inordinate
delay in approaching this court and therefore, the
appeal deserves to be dismissed on the ground of
delay.
7. In the light of the submission made by the
learned counsel appearing for the parties, I have
carefully examined the reasons assigned by the
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appellant at paragraphs 4 to 6 in the affidavit
accompanying application in IA No.1 of 2024. Perusal
of the reasons, as well as the contentions raised by
the learned counsel appearing for the appellant would
indicate that, notice in RA No.92 of 2018 was not
served to the appellant herein. The said aspect of the
matter was considered by the Trial Court in
Civil.Misc.No.4 of 2021, particularly, referring to
paragraph 19 of the said order, that the notice issued
by the First Appellate Court was delivered to the
appellant herein on 01.02.2019 and therefore, I find
force in the arguments advanced by the learned
counsel appearing for the respondents that, the
affidavit filed by the appellant herein seeking
condonation of delay is far from truth. It I well
established principle in law that, while considering the
application under Section 5 of the Limitation Act, it is
not the length of delay but the cause of delay has to
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be looked into. If the aggrieved party has approached
the court with clean hands, with bonafide reasons,
same has to be accepted. I have carefully perused the
reasons assigned by the appellant in the affidavit
accompanying IA No.1 of 2024, wherein, it is stated
that notice was not served on the appellant herein in
RA No.92 of 2018 and the said affidavit is incorrect as
the notice is served on appellant in RA No.1 of 2024
on 01.02.2019 and appellant has not approached this
court with clean hands and therefore, the
discretionary relief of accepting the application in IA
No. 1 of 2024 under Section 5 of Limitation Act,
cannot be extended to appellant herein, who had filed
affidavit with incorrect facts. Therefore, as there is no
sufficient cause has been shown to condone the
inordinate delay of 805 days in filing the appeal and in
view of the declaration of law made by the Hon'ble
Supreme Court in the case of Mool Chandra vs.
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Union of India and another reported in (2025) 1
SCC 625, the reasons assigned by the appellant is
incorrect and same cannot be accepted. In the result
IA No.1 of 2024 is dismissed and consequently
Regular Second Appeal is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
