Dismissed

Smt K N Kamala v. Sri Manoj Kumar B

Karnataka HC15 Dec 2021MFA/6581/2019

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a miscellaneous first appeal for deficiency of jurisdiction as an appeal on the ground of delay. The Court rejected the appellants' claim of age-related ailments and lack of legal knowledge as insufficient cause, citing their failure to challenge the injunction earlier and entering into a new agreement.

What did the court decide?

I.A.No.2/2019 for condonation of delay was dismissed, and consequently, the first appeal was dismissed.

Smt K N Kamala Vs Sri Manoj Kumar B — Property and Title | Karnataka HC (2021)

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M.F.A.No.6581/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.6581/2019 (CPC)

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BETWEEN:

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SMT.K.N.KAMALA D/O LATE NANJUNDA SHASTREE AGED ABOUT 74 YEARS

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SRI.K.N.SHANKAR S/O LATE NANJUNDA SHASTREE K AGED ABOUT 70 YEARS

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SMT.T.V.CHITKALA W/O K.N.SHANKAR AGED ABOUT 65 YEARS

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MR.L.SUNIL W/O K.N.KAMALA AGED ABOUT 49 YEARS

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SMT.L.SAVITHA W/O MANJUESH AGED ABOUT 54 YEARS

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P1 TO P5 ARE R/AT NO.41/18, 5^TH MAIN ROAD TATA SILK FARM TYAGARAJA NAGAR BANGALORE – 560 028 …APPELLANTS

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(BY SRI D.R.SUNDARESHA, ADVOCATE)

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AND :

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SRI MANOJ KUMAR B S/O SRI BABULAL

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M.F.A.No.6581/2019

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AGED ABOUT 33 YEARS R/AT NO.100/4, 2^ND FLOOR BULL TEMPLE ROAD BANGALORE – 560 019

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SMT.PINKY JAIN W/O NARESH KUMAR JAIN AGED BOUT 38 YEARS R/AT NO.348, AVENUE ROAD BANGALORE – 560 002 …RESPONDENTS

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(BY SRI SANJAY H SETHIYA, ADVOCATE)

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THIS MFA IS FILED UNDER ORDER XLIII RULE 1(R) AND SECTION 151 OF CPC PRAYING TO SET ASIDE THE ORDER DATED 31.10.2018 PASSED BY THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-16) IN O.S.NO.8712/2007 ON IA NO.11.

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THIS MFA COMING ON FOR ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORDER ON I.A.NO.2/2019/JUDGMENT

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Heard.

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The defendants in O.S.No.8712/2007 have

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preferred the above appeal challenging the order on I.A.No.11 dated 31.10.2018 passed against them.

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By the impugned order, the trial Court has granted injunction restraining the appellants or anybody claiming through them from alienating the suit Schedule

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M.F.A.No.6581/2019

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property or creating any third party interest over the suit schedule property.

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There is delay of 179 days in filing the appeal. Therefore the appellants have filed I.A.No.2/2019 for condonation of delay. Learned Counsel for the respondents seriously opposes the application.

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Appellant No.1 has filed her affidavit to

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explain the delay. In the affidavit, she has stated that they are aged persons suffering due to old age related ailments. She has also stated that they have no legal knowledge and later they came to know about the legal proceedings and obtained the certified copies. Therefore the delay has caused.

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The respondents in the statement of objections denied the above grounds. They claim that appellant Nos.4 and 5 are not aged persons. They also contended that after passing of the impugned order, appellant No.2 has appeared before the trial Court on several hearing dates and sought adjournments. Therefore the contentions that they were not aware of the

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M.F.A.No.6581/2019

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legal proceedings cannot be accepted. It is further contended that despite there being an interim injunction order against alienation, the appellants have entered into registered joint development agreement with one M/s.Sree Vidhathri Developers on 31.10.2019 and having regard to such conduct of the appellants, they are not entitled for condonation of delay.

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Learned Counsel for the appellants submits that the appellants have meritorious case and the trial Court has granted injunction relying on inadmissible agreement of sale, therefore the appellants shall not be thrown out of the Court on the ground of delay. In support of his contentions, he relies upon the judgment of this Court in K.B.Jayaram and Another vs Navineethamma¹ . He also submits that explanation for condonation of delay shall be liberally construed.

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It is no doubt true that the word ‘sufficient

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cause’ found in Section 5 of the Limitation Act, 1963 have to be liberally construed. The conduct of the parties

1 ILR 2003 KAR 879

M.F.A.No.6581/2019

seeking such equitable relief also matters. So far as the contention that the injunction cannot be based on inadmissible document, the appellants’ Counsel himself submits that the said document was admitted in evidence noting the objections. The appellants have not challenged that order so far.

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Learned Counsel for the respondents submits that the stamp duty was paid on the document as per the prevailing prescribed rate. Anyway the fact remains that the order of marking the documents is subject to the objections which has not been challenged.

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So far as inability of the appellants to attend

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the Court due to aged related ailments, of course, appellant Nos.1 to 3 are the Senior Citizens. But except the statement that they have age related ailments which is disputed by other side, no material is produced to substantiate the same. The certified copy of the order sheet in the proceedings before the trial Court submitted by learned Counsel for the respondents shows that

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M.F.A.No.6581/2019

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defendant No.3 personally appeared before the trial Court after the impugned order was passed.

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Further the encumbrance certificate produced

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by the respondents shows that despite the impugned injunction order, the appellants have entered into registered agreement with some third party. It is not their case that they entered into such agreement with leave of the Court. That goes to show that the appellants have no regards for the Court order.

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Having regard to such conduct of the appellants and aforesaid facts and circumstances it is not a fit case to condone the delay or to show indulgence or liberal approach. The interim order is only against alienation of the property. The suit is of the year 2007. It is open to the appellants to expedite the matter before the trial Court and get it disposed of. Therefore, I.A.No.2/2019 and consequently the appeal are dismissed.

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M.F.A.No.6581/2019

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The trial Court is requested to dispose of the suit as

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expeditiously as possible. In view of dismissal of the appeal, other pending IAs stood disposed of.

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Sd/JUDGE

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KSR

Smt K N Kamala v. Sri Manoj Kumar B

Case brief

What is this about?

What did the court decide?

Smt K N Kamala v. Sri Manoj Kumar B

Case brief

What is this about?

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