[Cites 2, Cited by 0]
Karnataka High Court
Sri M Nagaraju vs Smt Kamalamma on 28 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:49679
RSA No. 1459 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1459 OF 2025 (PAR)
BETWEEN:
1. SRI M NAGARAJU
S/O LATE MOTAPPA
AGE ABOUT 70 YEARS
2. SRI M KRISHNAPPA
S/O LATEK MOTAPPA
AGE ABOUT 70 YEARS
ALL ARE R/A HALEURU VILLAGE
NANDAGUDI POST AND HOBLI
HOSKOTE TALUK - 562 114
BENGALURU RURAL DISTRICT
Digitally signed ...APPELLANTS
by DEVIKA M (BY SRI KALYAN R, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SMT. KAMALAMMA
D/O LATE MOTAPPA
W/O MUNIYAPPA
AGE ABOUT 53 YEARS
R/A HIRANDAHALLI VILLAGE
BIARAHALI HOBLI
BENGALURU EAST TALUKL
BENGALURU - 560049
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RSA No. 1459 of 2025
HC-KAR
2. SMT. ASWATHAMMA
D/O LATE MOTAPPA
W/O RAJU @ MUNIRAJU
AGE ABOUT 60 YEARS
R/A HANNURU BANDE VILLAGE
KASABA HOBLI
KALYAN NAGAR VILLAGE
BENGALURU NORTH TALUK
BENGALURU - 560045
3. SRI ASHWATHAPPA
S/O LATE MOTAPPA
AGE ABOUT 72 YEARS
R/A HALEURU VILLAGE
NANDAGUDI POST AND HOBLLI
HOSKOTE TALUK - 562 114.
BENGALURU RURAL DISTRICT
...RESPONDENTS
(BY SRI N S BHAT, ADVOCATE FOR C/R1)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 28.06.2025 PASSED ON
I.A.NO.1 IN R.A.NO.42/2024 ON THE FILE OF PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 1459 of 2025
HC-KAR
ORAL JUDGMENT
Heard the learned counsel appearing for the
respective parties.
2. The record discloses that the suit was filed in
the year 2013 seeking relief of partition and separate
possession by the daughter of Motappa against the
defendants who are the sons of the said Motappa. When
the summons was served, defendants fail to appear before
the Court. When the case was posted for judgment, at that
juncture, the defendants appeared and filed an application
under Order 9 Rule 7 of CPC on 24.02.2015 and the same
was allowed on cost of Rs.500/- and written statement
was filed after 4 months i.e., on 24.06.2015 and the same
was taken on record. Thereafter, Issues were framed and
subsequently, plaintiff led evidence and in the meanwhile,
filed an application under Order VI Rule 17 of CPC and the
same was allowed and amendment was carried out. On
07.07.2022, led further evidence and completed the
evidence by marking the documents at Ex.P10 to P20 and
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the case was adjourned for cross-examination of PW1 on
10.08.2022 but the defendants never appeared and cross-
examined the witnesses. Again, the matter was adjourned
to 15.09.2022 and PW1 was not cross-examined hence,
taken as Nil and posted for the defendants' evidence. On
17.10.2022 also the case was adjourned again for
defendants' evidence. In view of the order passed by the
Principal District and Sessions Judge, the case was
transferred to the Court of Senior Civil Judge and JMFC,
Hoskote and the same was re-numbered as
O.S.No.1101/2022 and notice was also issued and both of
them have been served. Even the appellants have also
been served, not taken any steps either to recall PW1 for
cross-examination or to led any defendants' evidence.
Ultimately, on 16.06.2023, i.e., after 6 months, the
evidence of defendants was taken as nil and posted the
matter for arguments and the case was posted for
judgment and judgment was pronounced on 01.08.2023.
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Even this time also not filed any application for recalling or
leading any evidence.
3. The records discloses that the appeal also filed
with the delay of 210 days. The First Appellate Court
taken note that no purpose will be served in remanding
the matter since not taken any steps to cross-examine
PW1 and not led any evidence. Hence, dismissed the
appeal on the ground of delay in rejecting the application
filed under Section 5 of the Limitation Act. Being aggrieved
by the said order, the second appeal is filed before this
Court.
4. Having considered the material on record, it
discloses that the appellants were careless. It appears that
the appellants are squatting on the property and not ready
to give any share in the suit schedule property. In each
and every stage, not cooperated to prosecute the case.
When the case was posted for judgment, come up with an
application and subsequently, filed written statement in
2015. When the case was disposed of in 2023, except
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filing of written statement from 2015, the defendants have
not done anything i.e., not cross-examined PW1 and also
not led any defendants' evidence till 2023 and approached
the appellate court also belatedly.
5. However, Taking into note of the fact that the
matter is not decided on merits and the suit is also for the
relief of partition. Hence, taking into note of the conduct of
the defendants, it is appropriate to remand the matter to
the Trial Court with a time bound direction to dispose of
the same. Hence, on cost of Rs.1,00,000/- payable within
two weeks from today, the matter is remanded to the Trial
Court. If cost is not deposited within two weeks from
today, the appellants will not enure the benefit of this
order and the order of the Trial Court and First Appellate
Court will be confirmed. If cost is deposited before the
Trial Court, then Trial Court take up the matter for
consideration on 19.12.2025. From that date, the Trial
Court is directed to dispose of the suit within a period of 6
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months since the suit is of the year 2013 and take up the
matter on day to day basis.
6. Both the parties and respective counsels are
directed to assist the Trial Court in disposal of the suit
within a time bound period of 6 months.
7. The parties are directed to appear before the
Trial Court on 19.12.2025 without expecting any notice.
On deposit of the amount, the Trial Court is directed
to pay Rs.80,000/- to the plaintiff and remaining amount
of Rs.20,000/- shall vest with the State.
8. With these observations and direction, the
second appeal is disposed of.
9. In view of dismissal of the main appeal, I.As. if
any, do not survive for consideration and the same stand
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
