Allowed

Shri Venkateshappa v. Shri Shankar Raju Dead by Lrs

Karnataka HC25 Sept 2013RSA/2385/2008

Case brief

AI extract

What is this about?

In a regular second appeal against dismissal of an appeal due to delay, the High Court held that lack of valid service of summons meant the appellant lacked knowledge of the decree. The court allowed the interim application to condone delay, set aside the first appellate judgment, and remitted the matter for disposal on merits.

What did the court decide?

Interim application to condone delay allowed; impugned judgment set aside; matter remitted to first appellate court for disposal on merits.

Shri Venkateshappa Vs Shri Shankar Raju Dead by Lrs — Partition | Karnataka HC (2013)

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RSA 2385/2008

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 25^th DAY OF SEPTEMBER, 2013

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BEFORE

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THE HON’BLE MR.JUSTICE A.S.PACHHAPURE

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REGULAR SECOND APPEAL No.2385/2008

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BETWEEN

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SHRI. VENKATESHAPPA, S/O THIMMAPPA, AGED ABOUT 55 YEARS, R/AT MALLANDAHALLY VILLAGE, HUTHUR HOBLI, KOLAR TALUK, KOLAR DISTRICT-563 101.

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... APPELLANT

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(By Sri.A KRISHNA BHAT, ADV.)

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AND

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SHRI SHANKAR RAJU

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DEAD BY L.RS.

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1(a) RANGAMMA

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W/O LATE SHANKAR RAJU,

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1(b) SATHYAVATHI D/O LATE SHANKAR RAJU,

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1(c) MUNIRAJU S/O LATE SHANKAR RAJU,

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ALL ARE R/O. CHOLARAPALYA BANGALORE.

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SMT MALLAMMA,

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W/O LATE NANJAPPA RAJU,

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RSA 2385/2008

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AGED ABOUT 50 YEARS, MALLANDAHALLY, HUTHUR HOBLI, KOLAR TALUK-563 101.

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SHRI. LAXMAN RAJU, S/O CHIKKA NANJUNDARAJU, AGED ABOUT 60 YEARS, 7^TH CROSS, ASHOKA ROAD, NAZARBAD, MYSORE-570 001.

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... RESPONDENTS

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(BY SRI. S VISWESHWARAIAH, ADV. FOR R1(A-C) R2 SERVED. R3 SERVICE HELD SUFFICIENT)

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RSA FILED U/S.100 OF CPC AGAINST THE ORDER DATED 2.9.2008 PASSED IN R.A.NO.51/2003 ON I.A.2 ON THE FILE OF THE II ADDL. DISTRICT & SESSIONS JUDGE C/C. P.O., FTC-I & IV, KOLAR, DISMISSING THE I.A.2 FILED U/S 5 OF THE LIMITATION ACT AND CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD.31.5.1999 PASSED IN O.S.NO.336/1995 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) & JMFC, KOLAR,

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant has challenged the judgment and decree in RA NO.51/2003 dismissing the appeal by rejecting interim application for condonation of delay in filing the appeal.

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RSA 2385/2008

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The facts reveal that respondents 1(a) to

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(c) instituted a suit for partition and separate possession of their share in the suit properties against respondents 2 and 3 who are defendants 1 and 2 in the trial Court and the appellant who is the 3^rd defendant. The first defendant appeared in the trial Court and did not file any written statement. The appellant who was 3^rd defendant was placed exparte. Aggrieved by the judgment and decree, the appellant herein filed RA 51/2003 and sought for condonation of delay of three years and ten months in filing the appeal. The said application was numbered as IA No.2. The first appellate Court has recorded the evidence on the interim application and under the impugned judgment

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and decree has rejected the request to condone the delay and consequently the appeal also came to be dismissed. Aggrieved by the judgment and decrees of the Courts below the present appeal is filed by the 3^rd defendant.

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RSA 2385/2008

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The following substantial question of law

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is raised during admission.

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“When the material placed on record reveals that there was no service of notice to the appellant in the suit instituted, whether the first appellate Court was wrong in dismissing his application to condone the delay and thereby committed an error and illegality in passing the impugned judgment and decree?”

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I have heard learned counsel for both the parties.

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The appellant in his evidence and also in the affidavit in support of the application for condonation of delay has pleaded that he did not receive any notice in the suit and that he was not aware of the exparte decree passed against him. The suit came to be decreed by the trial Court on 31.5.1999 and on 11.3.2003 the appellant was

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RSA 2385/2008

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informed by the legal representatives of deceased plaintiff i.e. respondent 1(a) that she has obtained a decree for partition. It is thereafter that he approached the Court for certified copy of

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the judgment and decree and then preferred an appeal. Even in the evidence the appellant has deposed that he did not receive the notice in the suit and he came to know about the decree only on the information of Rangamma R1(a) on 11.3.2003. A copy of the report made available regarding the service of summons in the suit on the appellant reveals that the trial Court had passed an order to serve notice to the appellant by substituted service by affixing copy of the summons to the conspicuous part of the premises of the appellant. But the report reveals that the notice copy was affixed on the school premises and the Court premises. So, perusal of the report and the evidence of the appellant clearly indicate that the summons in the suit was not served on the

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RSA 2385/2008

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appellant. Therefore, it cannot be said that he had the knowledge of the decree that was passed against him. In the absence of service of summons it is the date of knowledge which will have to be taken into consideration and there has to be liberal approach for the cause shown by the appellant in condoning the delay to do substantial justice to the parties.

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When appellant says that he came to know about the decree only on 11.3.2003 and when there is no material about service of summons in the suit, the cause shown has to be accepted. The first appellate Court in its impugned judgment and decree did not consider this aspect at all and committed a grave error in rejecting the application to condone the delay. Therefore, taking into consideration the aforesaid circumstances, I am of the opinion that

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the appellant has made out sufficient cause to condone the delay. Hence, the substantial question of law is answered in affirmative.

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RSA 2385/2008

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In the result, IA No.2 filed by the appellant in the Courts below to condone the delay is allowed. The impugned judgment and decree of the first appellate Court are set aside. The matter is remitted back to the first appellate Court with a direction to dispose of the appeal on merits and in accordance with law.

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As the appeal is of the year 2003, to avoid delay, both the parties are directed to appear before the first appellate Court on 28.10.2013. The first appellate Court is directed to dispose of the appeal within three months from the date of communication of this order and receipt of the records.

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Sd/JUDGE

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*AP/-

Shri Venkateshappa v. Shri Shankar Raju Dead by Lrs

Case brief

What is this about?

What did the court decide?

Shri Venkateshappa v. Shri Shankar Raju Dead by Lrs

Case brief

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What the court decided

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