Karnataka High Court
Bhimanna vs Kallappa And Anr on 2 September, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO.200005 OF 2025
(PAR/POS)
BETWEEN:
BHIMANNA
S/O KALAPPA SAMAGAR,
AGE: 50 YEARS,
OCC: LABOUR,
R/AT: BHANDARAKAVATHI,
TQ: SOUTH SOLAPUR,
DIST: SOLAPUR - 413 221.
Digitally signed
by KHAJAAMEEN
MALAGHAN ...APPELLANT
Location: HIGH
COURT OF
KARNATAKA
(BY SRI YASHAS S. DIKSHIT, ADVOCATE)
AND:
1. KALLAPPA
S/O BHIMANNA SAMAGAR,
AGE: 73 YEARS,
OCC: NIL,
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2. YALLAPPA
S/O KALLAPPA SAMAGAR,
AGE: 55 YEARS,
OCC: AGRICULTURE,
BOTH R/A: HAVINLA,
TQ: INDI,
DIST: VIJAYAPURA - 586 209.
...RESPONDENTS
(BY SRI SANGANABASAVA B.PATIL, ADVOCATE FOR R1;
R2 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO ALLOW THIS APPEAL
AND SET ASIDE THE JUDGMENT AND DECREE DATED
07.02.2023 PASSED IN R.A.NO.27/2021 ON THE FILE OF II
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT VIJAYAPURA,
REMAND BACK THE MATTER TO THE FIRST APPELLATE COURT
AND ETC.,
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the appellant - defendant No.1
praying to set-aside the impugned order dated 07.02.2023
passed in R.A.No.27/2021 by the II Additional District and
Sessions Judge, at Vijayapura, where under the interim
application filed by the appellant - defendant No.1 under
Section 5 of the Limitation Act, seeking condonation of
delay in preferring the appeal has been dismissed and
consequently the appeal came to be dismissed.
02. Heard learned counsel for the appellant and
learned counsel for respondent No.1.
03. In spite of service of notice, respondent No.2
remained absent and unrepresented.
04. Respondent No.1 - plaintiff has filed a suit in
O.S.No.306/2014 against appellant - defendant No.1 and
respondent No.2 - defendant No.2 for the relief of
partition and separate possession of his share in following
suit properties :-
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I. Land bearing Sy.No.115/1 measuring 02 acres 30
guntas situated at Havinal village.
II. Land bearing Sy.No.115/3 measuring 03 acres 10
guntas situated at Havinal village.
05. The case of the respondent No.1 - plaintiff
before the Trial Court was that suit properties are
ancestral properties, plaintiff and defendants No.1 and 2
have share in the suit properties.
06. Respondent No.2 - defendant No.2 filed written
statement and counter claim, admitting the contention of
plaint paras No.2 and 3 and sought his share in the suit
properties. The appellant - defendant No.1 did not choose
to file any written statement. The Trial Court framed
issues, recorded evidence and decreed the suit allotting
1/3rd shares each to the parties in the suit schedule
properties.
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07. Aggrieved by the said judgment and decree
passed by the Trial Court, the appellant - defendant No.1
has filed an appeal in R.A.No.27/2021. As there was a
delay in filing the appeal, he filed I.A.No.1 under Section 5
of the Limitation Act seeking condonation of delay of 03
years 07 months in preferring the appeal. The said
application has been supported by the affidavit of the
appellant - defendant No.1. The respondents therein have
filed the objections to the said application seeking
condonation of delay denying the averments of the
application and supporting affidavit.
08. The First Appellate Court posted the matter for
enquiry on I.A.No.1. The appellant - defendant No.1 did
not appear for enquiry and thereafter the first appellate
Court dropped the enquiry. The appellant - defendant
No.1 did not appear for hearing on application seeking
condonation of delay even in spite of giving sufficient
opportunity. The first appellate Court took the arguments
on the appellant's side as nil and passed the orders on
I.A.No.1 dismissing the same and consequently dismissed
the appeal.
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09. Learned counsel for the appellant - defendant
No.1 would contend that in the absence of the appearance
of the learned counsel for the appellant - defendant No.1,
the remedy for the first appellate Court was to dismiss the
appeal instead of deciding the appeal on merits.
10. Learned counsel for respondent No.1 - plaintiff
would contend that in spite of giving sufficient opportunity,
learned counsel for the appellant - defendant No.1 did not
appear before the first appellate Court and therefore, the
first appellate Court has passed the impugned order
rejecting the application filed seeking condonation of delay
on merits. He further submits that FDP.No.28/2017 filed
by respondent No.1 - plaintiff has been disposed of and
final decree has been drawn on 23.03.2021.
11. Considering the above aspects, the following
substantial question of law arises for consideration:-
"Whether the First Appellate Court is justified in
deciding I.A.No.1 filed under Section 5 of the
Limitation Act and consequently dismissing the
appeal, contrary to Rule 17 of Order 41 of CPC.?
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12. Rule 17 of Order 41 of CPC reads as under:-
"Dismissal of appeal fo appellant's default :-
(1) Where on the day fixed, or on any other day
to which the hearing may be adjourned, the
appellant does not appear when the appeal is
called on for hearing, the Court may make an
order that the appeal be dismissed.
[Explanation.- Nothing in this sub-rule shall be
construed as empowering the Court to dismiss
the appeal on the merits.]
(2) Hearing appeal ex-parte.- Where the
appellant appears and the respondent does not
appear, the appeal shall be heard ex-parte."
13. Considering the above proviso, the first
appellate Court cannot decide the appeal on merits for
default of appearance of appellant.
14. In the case on hand, the first appellate Court
has decided I.A.No.1 and consequently dismissed the
appeal. Learned counsel for appellant - defendant No.1 in
the first appeal has not appeared and he remained absent
and the option for the first appellate Court was to dismiss
the appeal. The first appellate Court not empowered to
dismiss the appeal on merits.
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15. Considering the said aspect, the impugned
order passed by the first appellate Court requires to be
set-aside and the matter requires to be remanded to the
first appellate Court to decide the I.A.No.1 and appeal in
accordance with law.
16. As the appellant is not diligent neither before
the first appellate Court nor before this Court. There is a
delay also in filing the appeal before this Court, the
appellant - defendant No.1 saddled with costs of
Rs.5,000/- payable to respondent No.1 - plaintiff. In view
of the above, the following;
ORDER
I. The appeal is allowed.
II. The impugned order dated 07.02.2023 passed in
R.A.No.27/2021 by the II Additional District and
Sessions Judge, Vijayapura, is set-aside.
III. The matter is remitted to the first appellate Court to
dispose of the I.A.No.1 and appeal in accordance
with law.
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IV. The appellant and respondents are directed to
appear before the first appellate Court on
22.09.2025 without anticipation of any Court notice.
V. The appellant - defendant No.1 shall appear before
the first appellate Court on the said date and without
seeking any adjournment proceed with the appeal.
VI. The appellant - defendant No.1 to pay the said costs
to respondent No.1 - plaintiff or deposit in Court on
or before the said date.
In view of the disposal of the main appeal, the
pending I.As. if any, do not survive for consideration,
hence, they are also disposed of.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KJJ
Ct:Vk
