Karnataka High Court
Balakrishna vs Sharada S Savanth on 21 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
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RSA No. 1302 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1302 OF 2024 (PAR)
BETWEEN:
1. BALAKRISHNA
AGED ABOUT 65 YEARS
S/O LATE DEVDAS MYNADI
R/AT MYNADI
VADERHOBLI VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT-576201.
...APPELLANT
(BY SRI. K. PRASANNA SHETTY, ADVOCATE)
AND:
1. SHARADA S. SAVANTH
AGED ABOUT 52 YEARS
Digitally signed
by DEVIKA M D/O LATE DEVDAS MYNADI
Location: HIGH R/O 'SRI SIDDI LAKSHMI KRUPA'
COURT OF MAYDARBETTU BEEJADI VILLAGE
KARNATAKA KUNDAPURA TALUK
UDUPI DISTRICT-576222.
2. THARAMATHI
AGED ABOUT 69 YEARS
D/O LATE DEVDAS MYNADI
3. SURENDRA
AGED ABOUT 67 YEARS
S/O LATE DEVDAS MYNADI
-2-
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RSA No. 1302 of 2024
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4. PRABHAVATHI
AGED ABOUT 63 YEARS
D/O LATE DEVDAS MYNADI
5. SHASHIKALA
AGED ABOUT 61 YEARS
D/O LATE DEVDAS MYNADI
RESPONDENTS NO.2 TO 5 ARE
RESIDING AT MYNADI
VADERHOBLI VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE ORDER DATED 04.06.2024 PASSED ON I.A.NO.II
IN R.A.NO.21/2023 ON THE FILE OF SENIOR CIVIL JUDGE,
KUNDAPURA, DISMISSING THE I.A. AND APPEAL AND FILED
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2021
PASSED IN O.S.NO.20/2018 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, KUNDAPURA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant.
2. The Appellate Court dismissed the appeal on
the ground of delay. The counsel would submit that when
the suit was filed for the relief of partition, the appellant
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appeared in the month of February 2018 and filed written
statement and thereafter appellant/defendant No.3 did not
participate in the proceedings of the Trial Court and
ultimately the judgment was passed on 29.11.2021 and
thereafter also there was a delay of 1 year 2 months in
filing the appeal. Now, the counsel would contend that an
opportunity has to be given to the appellant to contest the
matter and this Court has to set-aside the judgment of
Trial Court and Appellate Court and remand the matter.
3. The main contention of the counsel before this
Court is that both the Courts have committed serious
material irregularity and illegality while appreciating the
material evidence available on the record and also the
First Appellate Court is not justified in dismissing I.A.No.2
filed by the appellant and fails to take note of not
contesting the matter before the Trial Court and ought to
have given an opportunity to contest the matter on merits
and hence it requires interference.
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4. Having heard the learned counsel appearing for
the appellant, the suit is filed by one of the daughter of
Devadas Mynadi against the defendants seeking the relief
of partition and they are the children of Devadasa Mynadi
that is suit against the brothers and sisters. It is the
specific case of the plaintiff/respondent No.1 that suit
properties are the Joint Hindu family properties and suit 'A'
schedule properties are the joint family properties and
defendant No.3 who is the appellant herein appeared and
filed written statement contending that 'A' schedule
properties are the self acquired properties of their father
namely Devadasa Mynadi and he has executed his last Will
in respect of the same in favour of the defendant. The
records discloses that the plaintiff in order to substantiate
the case examined himself as P.W.1 and got marked
document Ex.P.1 to P4 i.e., RTC extracts 2 in number,
Certified copy of Land Tribunal order and Certified copy of
Form No.7. The Trial Court considering the material on
record, comes to the conclusion that the suit schedule
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properties are joint family properties and the defendant
No.3 though filed the written statement did not contest the
matter and hence, the Trial Court granted 1/6th share.
5. Being aggrieved by the said judgment, an
appeal is filed in R.A.No.21/2023 with delay of 1 year 2
months and reason assigned in the application for
condonation of delay that in the month of February 2023
when he came to know about surveyor called over the
phone stating that schedule properties are required to be
divided as per the order of the Court, then they
approached the advocate and obtained certified copies and
he told that he was defendant No.3 in said suit and placed
exparte and there was a delay due to outbreak of Covid-
19 and he was constrained to shift his residence to his
village and could not be communicated the same. The Trial
Court having considered the reason assigned in the
application and also considering the evidence of P.W.1 i.e.,
power of attorney holder, only relies upon Ex.P.2
prescription issued by the Government Hospital,
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Kundapura but, the date of treatment was 22.12.2023 i.e.,
after filing of the appeal. But, not any medical records
prior to the decreettal of the suit or subsequent to the
decree of the suit and hence comes to the conclusion that
no sufficient grounds are made out and reject the same.
6. Being aggrieved by the order of the First
Appellate Court, the present second appeal is filed before
this Court. The main contention of the counsel appearing
for the appellant that whether both the Courts committed
an serious material irregularity and illegality while
appreciating the material on record and grounds which
have been urged is that dismissal of I.A.No.2 is erroneous.
7. Having heard the appellant's counsel and
counsel in his argument would contend that an opportunity
has to be given. Admittedly, suit was filed in the month of
January-2018 i.e., on 04.01.2018 and written statement
was also filed in the month of February-2018 and
thereafter did not participate in the proceedings from 2018
to 2021 except filing of written statement and even appeal
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is also filed with delay of 1 year 2 months and the same is
also not explained and made an attempt before the
Appellate Court by placing on record Ex.P.2 and the same
is also subsequent to the filing of the appeal and nothing is
placed on record before the Trial Court what prevented
him from February 2018 to 2023 for a period of 4 years,
no doubt in the midst of the year in 2020, there was a
Covid-19 outbreak that is in the month of March 2020, but
judgment was passed in the year 2021 that too in the
month of November 2021 and even after the judgment
also, not filed the appeal in time and the same is not
explained. Hence, the Appellate Court comes to the
conclusion that no sufficient cause is shown to condone
the delay. Having Considered the lethargic attitude of the
appellant that except filing written statement in the month
of February- 2018, for a period from 2018 to 2023, he did
not participate in the proceedings deligently and also did
not cross examine the witness and also not filed the
appeal in time and suit is also only for the relief of
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partition and 1/6th share was granted. When such being
the case, I do not find any ground to admit and frame any
substantive question of law as the very appeal is barred by
limitation. Hence, no grounds to admit and frame any
substantive question of law.
8. In view of the discussions made above, I pass
the following:
ORDER
i) Second Appeal is dismissed.
ii) In the view of dismissal of the appeal,
consideration of I.A.No.3 doesn't arise.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
