Karnataka High Court
Sri. Kodi Thimmayya Since Deceased By ... vs Sri. P. S. Somashekhar S/O Rajagopal ... on 13 January, 2025
-1-
NC: 2025:KHC-D:493
RSA No. 100669 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100669 OF 2023 (INJ-)
BETWEEN:
SRI. KODI THIMMAYYA
SINCE DECEASED BY HIS LRS
1. SMT. C. PADMA
W/O. C. VISHWANATH,
AGE. 56 YEARS,
OCC. HOUSEHOLD,
R/O.H.NO.21/2, OLD PLC COLONY,
NEAR SAINT JOSEPH CHURCH
TUNGABAHADRA DAM,
HOSAPETE,
DIST. BALLARI, KARNATAKA.
2. SMT. MARUTHAMMA W/O.
AGE.51 YEARS, OCC. HOUSEHOLD,
198, WARD-04,
NEAR GADVAL CAMP,
VN KOPPAL-583235.
BADIGER
3. SMT. SAYAMMA W/O. B. RAMUDU,
Digitally signed
by V N BADIGER AGE.51 YEARS, OCC. HOUSEHOLD,
Date: #21, TIMALAPUR, SANAPUR,
2025.01.20
11:01:29 +0530 KOPPAL-583234.
4. SMT. LAXMIDEVI W/O. P NARASIMHALU,
AGE.46 YEARS,
OCC. HOUSEHOLD,
NO.__WARD NO.3
CHILLAYYA CAMP,
MUNIRABAD DAM,
KOPPAL-583233.
5. K SHIVAJI S/O. K. THIMMAYYA,
AGE. 48 YEARS,
-2-
NC: 2025:KHC-D:493
RSA No. 100669 of 2023
OCC. SERVICE,
2 WARD, SANAPUR,
NEAR HULIGEMMA TEMPLE,
KOPPAL-583234.
6. K. RAMESH S/O. K. THIMMAYYA,
AGE.41 OCC. SERVICE,
#175, SANAPUR,
KOPPAL-583234.
7. SMT. MAHALAKSHMI W/O. GANGANNA,
AGE.40 OCC. HOUSEHOLD,
4TH WARD, GANDHINAGAR,
OPP. RAITH BHAVAN,
HOSAPET-583201.
DIST. BALLARI.
8. NAGESH S/O. TIMMAYYA,
AGE. 50 OCC. SERVICE,
#175, NEAR HULIGEMMA TEMPLE,
SANAPUR, GANGAVATHI,
KOPPAL-583234.
...APPELLANTS
(BY SRI. KINI NAGPRASAD SURESH, ADVOCATE)
AND:
1. SRI. P. S. SOMASHEKHAR
S/O. RAJAGOPAL RAJU,
AGE.61 YEARS, OCC. AGRICULTURE,
R/O. NARAYANPET,
KOPPAL
R/BY HIS GPA HOLDER,
G. VISHWANATH RAJU
S/O. APPALARAJU - 583231
R/O. NARAYANAPET
KOPPAL.
2. SRI. YAMANOORAPPA
S/O. DURUGAPPA VADDAR,
AGE. 51 YEARS, OCC. COOLIE,
R/O. BASAPUR VILLAGE,
TQ AND DIST. KOPPAL.
583234.
-3-
NC: 2025:KHC-D:493
RSA No. 100669 of 2023
3. SRI. YELAKURI EARANNA RAMESH
S/O. TIMMANNA,
AGE. 48 YEARS,
OCC. COOLIE,
R/O. SANAPUR VILLAGE,
TQ. GANGAVATHI, DIST. KOPPAL
583234.
...RESPONDENTS
-------
THIS RSA IS FILED U/SEC. 100 OF CPC., PRAYING TO IT MAY
BE PLEASED TO ALLOW THE REGULAR SECOND APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 18.02.2011 PASSED BY
THE COURT OF SENIOR CIVIL JUDGE, GANGAVATHI ALLOWING THE
REGULAR APPEAL NO. 4/2010 FILED BY THE RESPONDENTS HEREIN
IMPUGNING THE JUDGMENT AND DECREE DATED 12.01.2010
DECREEING THE SUIT IN O.S.NO. 126/2007 BY THE LEARNED
COURT ADDITIONAL CIVIL JUDGE (JR.DN) GANGAVATHI AND
CONSEQUENTLY DECREE THE SUIT IN O.S.NO.126/2007 ON THE
FILE OF THE LEARNED ADDITIONAL CIVIL JUDGE (JR.DN)
GANGAVATHI IN FULL BY GRANTING PERMANENT INJUNCTION IN
RESPECT OF SUIT SCHEDULE PROPERTIES, WITH COSTS
THROUGHOUT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
-4-
NC: 2025:KHC-D:493
RSA No. 100669 of 2023
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is filed by the legal representatives of
the plaintiff No.1 along with the plaintiff No.2
challenging the judgment and decree dated
18.02.2011 passed in RA No.4 of 2010 on the file of
the Senior Civil Judge at Gangavathi, allowing the
appeal and setting aside judgment and decree dated
12.01.2010 passed in OS No.126 of 2007 on the file of
the Additional Civil Judge (Jr.Dn.), Gangavathi,
decreeing 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.
3. The plaint averments are that the plaintiffs have
filed the suit seeking relief of permanent injunction
against the defendants from interfering with peaceful
possession of the plaintiffs over the suit land.
NC: 2025:KHC-D:493
4. After service of summons, the defendants
entered appearance and filed detailed written
statement denying the averments made in the plaint.
5. On the basis of the rival pleadings, the trial Court
has formulated issues for its consideration.
6. In order to establish the case, plaintiffs have
examined four witnesses as PW1 to PW4 and got
marked 26 documents as Exs.P1 to P26. On the other
hand, defendants have examined one witness as DW1
and produced 01 document as Exs.D1 to D40.
7. The trial Court, after considering the material on
record, by its judgment and decree dated 12.01.2010
decreed the suit of the plaintiffs and being aggrieved
by the same, the defendants have preferred Regular
Appeal in RA No. 4 of 2010 on the file of First
Appellate Court. Said appeal was resisted by the
plaintiffs. The First Appellate Court, after re-
NC: 2025:KHC-D:493
appreciating the facts on record, by its judgment and
decree dated 18.02.2011 allowed the appeal and set
aside the judgment and decree passed by the trial
Court in OS No. 126 of 2007.
8. Being aggrieved by the judgment and decree
passed by the First Appellate Court, the legal
representatives of plaintiff No.1 along with plaintiff
No.2 have preferred this Regular Second Appeal under
Section 100 of CPC. As there is delay of 3723 days in
filling the appeal, the appellants herein have filed IA
No.1 of 2023, seeking condonation of delay in filing
the appeal.
9. I have heard Sri. Kini N.S., learned counsel for
the appellants on IA No.1 of 2023.
10. It is submitted by Sri. Kini N.S, learned counsel
appearing for the appellants by referring to the
reasons set out in the affidavit accompanying
NC: 2025:KHC-D:493
application that, the original plaintiff No.1 died on
09.12.2010 and after the death of the original
plaintiff, the legal representatives of plaintiff No.1,
came to know about the judgment and decree passed
by the First Appellate Court. Therefore, learned
counsel appearing for the appellants submitted that
since the bonafide reasons are set out in the affidavit
accompanying application, delay of almost 12 years in
filing the appeal be condoned. Accordingly, sought for
allowing the appeal.
11. In the light of the submission made by the
learned counsel appearing for appellants on IA No.1 of
2023, I have perused the reasons stated in the
affidavit accompanying application that, plaintiff No.1
died on 09.12.2010, however, there are two plaintiffs
who filed the original suit and therefore, the plaintiff
No.2 ought to have vigilant and diligent in pursuing
the matter the at the earliest. Taking into
NC: 2025:KHC-D:493
consideration the fact that it is not the length of delay
that would be required to be considered while
examining the plea for condonation of delay, it is the
cause for delay which has been to be examined under
Section 5 of the Limitation Act. It is settled principle of
law by the Hon'ble Apex Court in the case of state of
State Of Nagaland Vs. Lipok Ao & Ors reported in
(2005) 3 SCC 752, wherein, it is held that, in order
to condone the delay, the court has to look into the
cause of delay and not the length of delay and also if,
the cause is shown to meet the ingredients of Section
5 of Limitation Act and same has to be accepted.
Considering the law declared by the Hon'ble Apex
Court in the aforementioned judgment and the fact
that, plaintiff No.2 was very much alive and was not
diligent in prosecuting the proceedings and ought to
have filed the appeal at the earliest. Therefore, I am
of the view that the reasons assigned by the deponent
NC: 2025:KHC-D:493
in IA No.1 of 2023 cannot be accepted to condone the
delay of more than 12 years in filing the appeal. In
that view of the matter, IA No.1 of 2023 is rejected,
consequently, the appeal is dismissed.
In view of the dismissal of the appeal, all pending
application stands dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
