Karnataka High Court
Momiyaz vs Muneer Ahammad on 17 September, 2025
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NC: 2025:KHC:37133
RSA No. 1175 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 1175 OF 2014 (PAR)
BETWEEN:
MOMIYAZ S/O LATE ABDUL MUNAF SAB
AGED ABOUT 29 YEARS,
OCCUPATION: CARPENTER
R/O BHANUVALLI VILLAGE
HARIAHARA TALUK,
DAVANAGERE DISTRICT-577601.
...APPELLANT
(BY SRI. HARISH KUMAR M.S., ADVOCATE)
AND:
1. MUNEER AHAMMAD S/O LATE BUDEN SAB
BHANUVALLI, AGED ABOUT 59 YEARS,
Digitally signed by
PRAMILA G V
R/O SHIMOGA ROAD,
Location: HIGH JIGALER ONI, MALEBENNUR
COURT OF
KARNATAKA HARIHAR TALUK-577601.
NASIR AHMMED
SINCE DECEASED BY HIS LRS
2. SMT. GULAB JAN
W/O LATE NASIR AHAMMEAD
AGED ABOUT 49 YEARS,
R/O OLD JAMIYA MASJID ROAD,
MALEBENNUR, HARIHAR TALUK-577601.
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RSA No. 1175 of 2014
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3. SMT. JABINA BANU D/O LATE NASIR AHAMMEAD
W/O ISHRAD, AGED ABOUT 33 YEARS,
R/O NEAR KOTE MASJID
JAMULLA MOHALLA, RANEBENNUR-581115
HAVERI DISTRICT.
4. HIBJUNNISA W/O ABDUL MUNAF SAB BHANUVALLI
AGED ABOUT 53 YEARS
5. JAVEED ALI S/O LATE ABDUL MUNAF SAB
BHANUVALLI, AGED ABOUT 33 YEARS,
6. SADIQULLA S/O ABDUL MUNAF SAB BHANUVALLI
AGED ABOUT 31 YEARS,
7. MOMIYABANU D/O ABDUL MUNAF SAB BHANUVALLI
AGED ABOUT 53 YEARS,
THE RESPONDENT NO.4 TO 7 ARE ALL
R/O 2ND CROSS, AZAAD NAGAR,
MALEBENNUR, HARIHAR TALUK,
DAVANAGERE DISTRICT-577601.
...RESPONDENTS
(BY SRI. V.B.SIDDARAMAIAH, ADV. FOR R1 & R2;
V/O DATED 21.4.2025 SERVICE OF NOTICE TO R3 IS H/S;
R4 TO R7 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 08.01.2014 PASSED IN
UNNUMBERED R.A.NO. /2011 ON THE FILE OF SENIOR CIVIL
JUDGE, HARIHAR, REJECTING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 03.12.2008 PASSED IN
O.S.NO.15/2007 ON THE FILE OF CIVIL JUDGE (JR.DN) & JMFC,
HARIHARA AND ETC.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1175 of 2014
HC-KAR
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is filed against the order dismissing the
appeal while dismissing the application for condonation of delay
1030 days.
2. The appellant before this Court is plaintiff no.5
before the Trial Court in OS No.15/2007 on the file of the Civil
Judge (Jr. Dn.) Harihar.
3. Along with remaining four plaintiffs, the appellant
filed suit for partition and that came to be dismissed. Then, the
appeal is filed after 1030 days delay and that appeal was not
numbered on account of the delay.
4. An application is also filed by plaintiff no.5/appellant
to condone the delay of 1030 days on the premise that he was
not in station and that he being a carpenter was working in
different cities and he was not aware of the dismissal of the suit
in OS No.15/2007.
5. Defendants/respondents before the Appellate Court,
filed objections to the said application. Plaintiff no.5/appellant,
to substantiate the contention relating to delay, examined
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himself and also examined one witness, one of his relatives.
The respondents did not lead any evidence on their behalf.
6. First Appellate Court, considering the materials on
record, took a view that the delay is not properly explained and
accordingly, the appeal was dismissed. Hence, the present
second appeal.
7. This appeal is admitted to consider the following
substantial question of law:-
"Whether the First Appellate Court is justified
in dismissing the application for condonation of delay
of 1030 days?"
8. Learned counsel for the appellant would submit that
the suit is one for partition and separate possession and
dismissal of appeal while rejecting the application for
condonation of delay of 1030 days would affect the right of the
appellant in the immovable property which he has inherited
after the demise of his father. It is his further submission that
he being carpenter was working in various places and was not
in station, as such, appellant was not aware of the dismissal of
the suit.
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9. It is also urged on behalf of the appellant that
respondents have not led any rebuttal evidence to disbelieve
the claim made by plaintiff No.5/appellant.
10. This Court has considered the contentions raised at
the bar and perused the records.
11. It is not in dispute that the suit is filed for the relief
of partition and separate possession. The present appellant is
plaintiff no.5. The suit is dismissed. However, the remaining
plaintiffs have not filed any appeal.
12. Plaintiff no.5, who claims that he was not in station
and he was residing elsewhere was not aware of the dismissal
and filed an appeal after 1030 days delay, has also lead
evidence explaining the reasons for
the delay.
13. The law relating to application for condonation of
delay is well settled. The Courts have to be liberal in
considering the application for condonation of delay. It is also
noticed that the suit is one for partition and separate
possession, where the plaintiff claims that he has inherited the
property after the demise of his father.
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14. No doubt, the suit is dismissed, however, plaintiff
has right of first appeal under Section 96 of the Code of Civil
Procedure, 1908. This being the position, this Court is of the
view that the application for condonation of delay has to be
considered liberally and delay of 1030 days in filing the appeal
has to be condoned, as the delay in filing the appeal does not
affect the right of the respondents, if any, over the property.
Hence the following:-
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated 08.01.2014 in
Regular Appeal (unnumbered) - 2011, on the file of
Senior Civil Judge, Harihar, are set-aside.
(iii) Consequently, First Appeal is restored to the file of
Senior Civil Judge, Harihar and First Appellate
Court shall consider the appeal on merits.
(iv) The appellant and respondent Nos.1 and 2 shall
appear before First Appellate Court on 13.10.2025
without any further notice.
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Notice shall be issued by the First Appellate Court to the
remaining parties.
It is made clear that nothing is expressed on the merits of
the matter.
All contentions on merits of the appeal are kept open.
SD/-
(ANANT RAMANATH HEGDE)
JUDGE
DN, SMJ
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