Allowed

Yallappa S/O Hanamappa Muttagi v. Laxman S/O Hanamappa Muttagi

Karnataka HC12 Nov 2020CRP/100016/2017

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition seeking condonation of delay for preferring a regular appeal against a final decree. The court set aside the impugned order dismissing the application for condonation of delay under Section 5 of the Limitation Act, restoring the appeal.

What did the court decide?

The application for condonation of delay under Section 5 of the Limitation Act is allowed; regular appeal restored to first appellate court; order reversed on deposit of costs.

Yallappa S/O Hanamappa Muttagi Vs Laxman… — Civil Procedure and Limitation | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶2

DATED THIS THE 12^th DAY OF NOVEMBER 2020

¶3

BEFORE

¶4

THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

¶5

CIVIL REVISION PETITION NO.100016/2017

¶6

BETWEEN:

¶7

YALLAPPA S/O HANAMAPPA MUTTAGI AGE: 43 YEARS, OCC: AGRICULTURE, R/O: SURAKOPPA, TQ/DIST: BAGALKOT.

¶8

... PETITIONER

¶9

(BY SRI. S.C. HIREMATH, ADVOCATE FOR SRI. S.B. HEBBALLI, ADVOCATE)

¶10

AND:

¶11

1 . LAXMAN S/O HANAMAPPA MUTTAGI AGE: 36 YEARS, OCC: AGRICULTURE, R/O: SURAKOPPA, TQ/DIST: BAGALKOT.

¶12

2 . YAMANAVVA W/O HANAMAPPA MUTTAGI AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O: SURAKOPPA,TQ/DIST: BAGALKOT.

¶13

.. RESPONDENTS

¶14

(BY SRI.PRAKASH N. HOSAMANE, ADVOCATE FOR RESPONDENTS)

¶15

THIS CRP IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE SEEKING TO SET ASIDE THE ORDER DATED 07.10.2016 PASSED IN RA NO.27/2012 ON THE FILE OF THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT, REJECTING THE I.A. NO.2 FILED FOR CONDONATION OF DELAY AND CONSEQUENTLY DISMISSING THE APPEAL AS TIME BARRED AND ALLOW I.A. NO.2 AND

¶16

CR P. No.100016/2017

¶17

¶18

PASS SUCH OTHER ORDERS AS DEEMED FIT AND PROPER IN THE INTEREST OF JUSTICE.

¶19

THIS PETITION COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

¶20

ORDER

¶21

The petitioner herein was the appellant in Regular Appeal No.27/2012 in the Court of the Principal Senior Civil Judge and CJM, Bagalkot, (hereinafter for brevity referred to as the ‘first appellate Court’), who himself was the decree holder in the original suit for partition. It appear that he initiated proceeding of final decree in the Court of the learned Principal Civil Judge at Bagalkot, in FDP No.5/2008 (hereinafter for brevity referred to as the ‘trial Court’). Aggrieved by the final decree passed by the trial Court on 31.01.2011, he preferred a regular appeal, however, with the delay of one year five months. He filed I.A.2 under Section 5 of the Limitation Act seeking condonation of the said delay. The first appellate Court by its considered order dated

¶22

CR P. No.100016/2017

¶23

¶24

07.10.2016 dismissed the said I.A. Consequently, the

¶25

appeal also stood dismissed. Aggrieved by the said order, the petitioner has preferred the present petition.

¶26

The respondents are being represented by their counsel.

¶27

Though this matter is listed for admission,

¶28

with the consent of learned counsel from both side, the same is taken up for final disposal.

¶29

Heard the arguments from both side.

¶30

Learned counsel for the petitioner in his

¶31

single sentence argument submitted that considering

¶32

the circumstance of the case, the first appellate Court ought to have condoned the delay though by imposing some costs and heard the regular appeal on merit.

¶33

Per contra, learned counsel for the

¶34

respondents in his arguments submitted that the reasons shown by the petitioner in the first appellate Court seeking condonation of delay was that there was

¶35

CR P. No.100016/2017

¶36

¶37

no communication from his advocate to him about the disposal of the final decree proceeding, as such, the delay was caused. He further submitted that the very same petitioner had also deposited the Commissioner’s fee in the Court. As such, he was aware of the entire final decree proceeding. Thus, the Court disbelieved his version and has rightly rejected his application filed under Section 5 of the Limitation Act.

¶38

A perusal of the impugned order would go to

¶39

show that the petitioner got himself examined as PW-1 who in his evidence denied that he had deposited a sum of `1,000/- towards Commissioner’s fee and he also denied he had any knowledge of the final decree proceedings or its disposal. On the other hand, he contended in his evidence that he was not informed about the development in the final decree proceeding by his counsel. The first appellate Court giving the reason that it is the duty of the client to be in touch with his

¶40

CR P. No.100016/2017

¶41

¶42

advocate and to know about stages of the case and also observing that the appellant before it had not approached the Court with clean hands since he denied that he had deposited the Commissioner’s fee of `1,000/- when in fact the Court record reveal that he had deposited the said amount, proceeded to dismiss the application, consequently, the regular appeal also came to be dismissed.

¶43

From the submission made from both side, it reveals that the original suit was between the brothers and sisters for partition and the suit was decreed in favour of the plaintiff giving him 1/3^rd share. However, he was not happy with the final decree proceeding and as such, he preferred regular appeal. No doubt, he has taken a contention that his counsel has not informed him about the stage of the final decree proceeding and also denied that he had deposited any amount in the Court towards Commissioner’s fee. But the question is

¶44

CR P. No.100016/2017

¶45

¶46

that whether that itself is sufficient to reject his application seeking condonation of delay which in turn has deprived him of his right to prefer a regular appeal which was the first appeal against the judgment and decree passed in the Court at the first instance. Therefore, considering the nature of the allegations and of the fact of consequence of rejection of I.A.2 by the trial court which has resulted in denial of right of preferring an appeal by the plaintiff and more particularly in a suit for partition, and also considering the reasons given by him, I am of the view that the trial Court ought not to have asked him to produce any document to show that he had initiated any legal action against the advocate for not appraising stage of the case to him (petitioner). On the other hand, the Court could have allowed the application though with some costs to compensate the inconvenience caused to the respondent in the first appellate Court.

¶47

CR P. No.100016/2017

¶48

¶49

9. Accordingly, I proceed to pass the following

¶50

order:

¶51

ORDER

¶52

The Civil Revision Petition is allowed on a cost of `10,000/- (Rupees ten thousand only) payable by the petitioner herein to the respondents together, within two weeks from today. Subject to the payment of said costs, the order dated 07.10.2016 passed by the learned Principal Senior Civil Judge, Bagalkot in RA No.27/2012 rejecting I.A.2 which was filed under Section 5 of the Limitation Act is set aside and the said I.A.2 is allowed

¶53

and the delay of one year five months caused in preferring regular appeal is hereby condoned. Regular Appeal is restored on the file of the first appellate Court.

¶54

The petitioner to deposit the cost in the first appellate Court within the said period of two weeks from today and communicate the fact of such deposit to the respondents through Registered Post Acknowledgment

¶55

CR P. No.100016/2017

¶56

¶57

Due. It is made clear that the non-depositing of the costs imposed today within the time given in this order would disentitle the petitioner to avail the benefit of today’s order passed in his favour.

¶58

Sd/JUDGE

¶59

kmv

Yallappa S/O Hanamappa Muttagi v. Laxman S/O Hanamappa Muttagi

Case brief

What is this about?

What did the court decide?

Yallappa S/O Hanamappa Muttagi v. Laxman S/O Hanamappa Muttagi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sudhakar Dasar Vs Savita @ Nandita

Shashikanth S/O Sanjeeva Reddy Vs the State of Karnataka

Ramappa Rathod S/O Somappa Rathod Vs the State of Karnataka

Sri. Ashif Yakubasab Basarikatti Vs the State of Karnataka

Naveen S/O Kampaleppa Pujari Vs Ekanta E S/O Late Thimmappa

Nagaraja S/O Siddappa Sajjan Vs the State of Karnataka