Dismissed

S G Shivakumar v. Smt Sarvamangalamma

Karnataka HC1 Oct 2021RSA/10/2020

Case brief

AI extract

What is this about?

This Second Appeal arose from a partition suit. The primary issue was the condonation of a delay of 3342 days in filing the appeal, citing illness and illiteracy. The Court rejected the condonation application, noting the appellant actively participated in proceedings below and filed a writ petition, thus possessing knowledge of the litigation status.

What did the court decide?

Application for condonation of delay dismissed under Section 5 of Limitation Act; Second Appeal dismissed.

S G Shivakumar Vs Smt Sarvamangalamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF OCTOBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.10/2020 (PAR)

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BETWEEN:

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S.G. SHIVAKUMAR, S/O LATE S.M.GANGADHARAIAH, AGED ABOUT 64 YEARS, AGRICULTURIST, RESIDENT OF DODDASAGGERE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT-572 121.

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… APPELLANT

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[BY SRI A.V. GANGADHARAPPA, ADVOCATE]

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AND:

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SMT. SARVAMANGALAMMA, W/O GANGADHARAIAH, D/O LATE S.M. GANGADHARAIAH, AGED ABOUT 70 YEARS.

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SMT.JAYAMMA, D/O LATE S.M.GANGADHARAIAH, AGED ABOUT 66 YEARS.

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BOTH ARE RESIDENTS OF DODDASAGGERE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT-572 121.

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SMT. RENUKA, D/O SOMASHEKHAR, W/O KUMARASWAMY,

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AGED ABOUT 35 YEARS, RESIDING AT SHIVAKRUPA, NO.365A, 9^TH CROSS, WEST OF CHORD ROAD, INDUSTRIAL TOWN, BENGALURU-560 044.

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4. SOMASHEKHAR,

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S/O SREEKANTAIAH, (HUSBAND OF RATHNAMMA AND FATHER OF PLAINTIFF NO.4), AGED ABOUT 68 YEARS, PRESENTLY RESIDENT OF PUTTASANDRA VILLAGE, PATHGENAHALLI POST, KORATAGERE TALUK, TUMAKURU DISTRICT-572 121. ... RESPONDENTS

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[BY SRI A.C. MANJUNATHA, ADVOCATE FOR R-1 & R-3; SRI G.C. SHANMUKHA, ADVOCATE FOR R-2; R-4 IS SERVED]

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THIS R.S.A IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 11.08.2010 PASSED IN R.A.NO.57/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-V AT MADHUGIRI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 02.03.2009 PASSED IN O.S.NO.147/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC, MADHUGIRI.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today along with I.A.No.1/2020 for condonation of delay of 3342 days in filing the

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appeal and the statement of objections.

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When the matter was listed before this Court on 01.09.2021, the learned counsel for the appellant was directed to produce the documents with regard to the appellant having taken treatment for cancer from 2008 to till date after hearing both the learned counsel, since there was a delay of 3342 days in filing the appeal. Again the matter was listed on 15.09.2021 and the learned counsel for the appellant sought time to produce the documents as directed earlier and this Court granted time till this day.

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This Court earlier having heard the matter, directed the learned counsel for the appellant to produce the documents to show that the appellant having taken treatment for cancer from 2008 till date. The same is not placed before the Court. Having considered the reasons mentioned in the delay application, which is filed along with the appeal, the reasons assigned in paragraph No.3 of the affidavit is that on account of suffering from cancer, he could not effectively participate in the proceedings before the Trial Court and the Trial Court erroneously passed the decree by placing him exparte. It is also sworn to that the respondents have filed the final decree

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proceedings in FDP No.9/2009 to effect the partition by metes and bounds and he has stated that he contested the proceedings. In the final decree proceedings, an order came to be passed on 28.08.2019 and he had challenged by preferring W.P.No.50895/2019. After noticing the anomalous situation created in the impugned judgments and decrees of the courts below, the Hon’ble High Court by order dated 22.11.2009 was pleased to dismiss the writ petition, reserving liberty to the appellant to avail the appellate remedy. The High Court directed the FDP Court to keep the proceedings in abeyance for a period of five weeks to enable him to file the appeal. Thereafter, this appeal is filed before this Court on 03.01.2020. It is also sworn to in the affidavit that he is a rustic villager and not conversant

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with the legal implications. In fact, in the final decree proceedings in FDP No.9/2009, the Court Commissioner effected division of the properties allotting 1/5^th share to the respondents. But subsequently, on the transposition of respondent No.1 as 2^nd petition, the fresh commission warrant was ordered to be issued to bifurcate the properties into five portions which was challenged by him before this Court by filing the writ petition in W.P.No.50895/2019. It is only then he was

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made to understand the legal implications and there is no inordinate delay on his part in prosecuting the matter and hence the delay may be condoned.

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The learned counsel for respondent Nos.1 and 3 has filed the statement of objections to I.A.1/2020 wherein it is contended that the appellant has sworn to a false affidavit. That except the matters on record, all other averments made in the affidavit are all denied as false. It is also contended that the appellant has not produced any documents to substantiate the statements made in the affidavit that he was suffering from cancer and could not prosecute the matter. It is also contended that the appellant who was arrayed as respondent No.1 in FDP No.9/2009 has entered his appearance through his counsel and fully contested the case. It is contended that before the First Appellate Court, the appellant has filed R.A.No.57/2009 challenging the judgment and decree dated 02.03.2009 passed by the Trial Court in O.S.No.147/2003 and the said R.A.No.57/2009 was dismissed on 11.08.2010. Undisputedly, the appellant contested the FDP proceedings before the Trial Court from the year 2009, hence there was no any impediment

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for him to challenge the judgment and decree passed by the Courts below within the period of limitation. However, he has not chosen to do so and now after an inordinate delay of 3342 days, the present appeal is filed that too on flimsy grounds. Hence, the same is liable to be rejected with exemplary cost. It is also contended that this Court in W.P.No.50895/2009 has not granted any liberty to the appellant to avail the appellate remedy and it was clearly mentioned in the writ petition that the writ petition was disposed of without granting indulgence in the matter.

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Having perused the grounds urged in the affidavit accompanying the application and also the statement of objections, in the affidavit, the appellant has sworn to that he contested the matter before the FDP proceedings and FDP was filed in the year 2009 and the appeal was dismissed in 2010 in R.A.No.57/2009 i.e., on 11.08.2010. When the appellant himself has sworn to an affidavit in paragraph No.3 of the affidavit that he had contested the final decree proceedings in FDP No.9/2009 and also challenged the order which came to be passed in final decree proceedings dated 28.08.2019 and questioned the same before this Court by filing the writ petition, it is clear that he was

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aware of the judgment and decree passed in R.A.No.57/2009 on 11.08.2010 and if he was not having any knowledge of the final decree proceedings or dismissal of the appeal, then there would have been force in the contention of the appellant, but the reasons assigned in the affidavit that he is a rustic villager and not conversant with the legal implications cannot be a ground to condone the delay of 3342 days in filing the appeal. The appellant contested both the suit as well as filed appeal and the same was also dismissed in 2010 itself.

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The reasons assigned in the affidavit accompanying the application is not satisfactory to condone the delay of 3342 days in filing the appeal by allowing the application filed under Section 5 of the Limitation Act. It is not his case that he was not having knowledge of R.A.57/2009 and even after the dismissal of R.A.No.57/2009, he himself participated in the final decree proceedings and even filed the writ petition before this Court against the order passed in FDP and he had clear knowledge about the dismissal of the appeal and also the proceedings in FDP proceedings and after almost ten years, the present R.S.A. is filed.

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The learned counsel for the respondents also placed the copy of final decree proceedings passed in FDP No.9/2009, which was drawn on 20.02.2020 allowing the petition on 04.02.2020 and it has already reached its finality based on the judgment passed in O.S.No.147/2003 and also the judgment passed in R.A.No.57/2009. When such being the case and when the matter has already reached finality, first of all there are no valid reasons assigned in the affidavit accompanying the application to condone the delay of 3342 days in filing the appeal and no grounds are made out to allow the application filed under Section 5 of the Limitation Act to condone the delay of almost ten years.

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8. Hence, I.A.No.1/2020 filed by the appellant is liable

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to be dismissed. Consequently, RSA is also dismissed.

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Sd/JUDGE

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S G Shivakumar v. Smt Sarvamangalamma

Case brief

What is this about?

What did the court decide?

S G Shivakumar v. Smt Sarvamangalamma

Case brief

What is this about?

What did the court decide?

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