Allowed

Nagaraju v. G B Rajasekhar

Karnataka HC16 Apr 2021RSA/1694/2019

Case brief

AI extract

What is this about?

This High Court allowed the second appeal filed by an appellant challenging the dismissal of his partition suit appeal on grounds of delay. The court held that the delay was adequately explained by ill-health and financial hardship. It set aside the lower court order, remanded the matter for admission, and reserved costs.

What did the court decide?

Impugned order set aside; appeal remanded to First Appellate Court for hearing; appellant to pay Rs. 10,000/- cost to respondent No 1 on next hearing date.

Nagaraju Vs G B Rajasekhar — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF APRIL, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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R.S.A. NO.1694 OF 2019 (DEC)

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BETWEEN:

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NAGARAJU S/O LATE BASAPPA @ BASAVARAJAPPA, 50 YEARS, R/O BETTANAHALLI VILLAGE, KALLAMBELLA HOBLI, SIRA TALUK , TUMKUR DISTRICT-572137.

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…APPELLANT

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(BY SRI. R. SHASHIDHARA, ADVOCATE)

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AND:

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G.B. RAJASEKHAR S/O LATE BASAPPA @ BASAVARAJAPPA AGED 53 YEARS

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KUMARI SOUNDARYA D/O G.B.RAJASEKHAR, MAJOR

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KUMARI DHANUJA @ DHANASHREE D/O G.B. RAJASEKHAR, MAJOR

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CHANDAN S/O G.B. RAJASEKHAR, AGE MAJOR

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ALL ARE R/O KUDALASANGAMESHWARA NILAYA, D.NO.1836, 3^RD ‘A’ CROSS,

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D BLOCK, 2^ND STAGE, MAIN ROAD, PRAKASH NAGAR, WARD NO.23, RAJAJINAGAR, BANGALORE-10.

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5. SHIVANNA

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S/O LATE BASAPPA @ BASAVARAJAPPA, 48 YEARS, R/AT BETTANAHALLI VILLAGE, KALLAMBELLA HOBLI, SIRA TALUK, TUMKUR DISTRICT-572137.

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…RESPONDENTS

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(BY SRI. VINOD PRASAD, ADVOCATE CAVEATOR RESPONDENT NO.1)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 09.07.2019 PASSED IN R.A.NO.61/2013 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 20.07.2009 PASSED IN O.S.NO.92/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) SIRA.

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

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JUDGMENT

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This appeal is filed by the plaintiff challenging the judgment and decree of the First Appellate Court by which the First Appellate Court dismissed the appeal on the ground of delay.

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The plaintiff and defendant No.1 are children of late Basappa. It is claimed that suit properties were joint

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family properties and that the plaintiff was entitled for a share in the suit properties. He contended that the suit Items No.1 and 2 were purchased in the name of defendant No.1, who was the eldest male member of the family and that the suit properties were cultivated by the joint family. He further contended that suit properties were mortgaged by the joint family. He contended that defendant No.1 was involved in the cinema field in Bangalore and was never cultivating the suit properties. He contended that defendant No.1 refused to partition the suit properties and turned down the demands of the plaintiff and thereafter executed a deed of gift in favour of his wife on 04.10.2002.

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Defendants No.1 and 2 contested the suit and claimed that suit Items No.1 and 2 were the selfacquisition of defendant No.1. Based on the aforesaid pleadings, the Trial Court framed the following issues :

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i. Whether the plaintiff proves that he and the defendants constituted a joint family?

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ii. Whether the plaintiff proves that the lands at Doddagula constituted nucleus for the purchase of the suit schedule items 1 and 2 and that he has contributed Rs.60,000/- to the first defendant?

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iii. Whether the plaintiff proves that the gift deed in favour of defendant No.2 by first defendant dated 04.10.2002 is with intent to defraud the rights of other members of the family?

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iv. Whether the plaintiff proves that the registered mortgage deed dated 02.02.1994 gives any right in his favour in respect of the suit schedule properties?

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v. Whether the first defendant proves that the suit schedule items 1 and 2 were his selfacquired properties?

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vi. Whether the plaintiff is entitled to the reliefs prayed?

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vii. What order or decree?

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The plaintiff was examined as P.W.1 and he

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adduced the evidence of four other witnesses as P.Ws.2 to

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5 and marked documents as Exs.P-1 to P-25. The defendant No.1 was examined as D.W.1 and he adduced

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the evidence of D.Ws.2 to 8 and marked documents as Exs.D-1 to D-55.

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Based on the oral and documentary evidence the Trial Court held that the plaintiff is entitled to 5/16^th share in suit Item No.3 and dismissed the suit in respect of suit Items No.1 and 2.

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Being aggrieved by the aforesaid judgment and decree, the plaintiff and his mother filed R.A. No.61/2013 though belatedly and filed an application under Section 5 of the Limitation Act seeking condonation of delay of 44 months in filing the appeal. The plaintiff contended in the affidavit accompanying the application for condonation of delay that they were under financial problems and were migrating from village to village in search of daily employment. They also contended that the plaintiff had to provide education to children. He also contended that he was suffering from ill-health due to severe diabetes.

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Before the First Appellate Court, the plaintiff was examined as P.W.1 and he marked documents as Exs.P-1 to P-11, while defendant No.1 was examined as R.W.1 and he marked documents as Exs.R-1 to R-9.

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The First Appellate Court held that the cause shown for the delay of 44 months in filing the appeal was not explained sufficiently. In addition, the First Appellate Court noted that defendants No.1 and 2 had altered their position by selling the suit Items No.1 and 2. The First Appellate Court, therefore, rejected the application for condonation of delay and consequently dismissed the appeal.

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Being aggrieved by the aforesaid judgment and decree of the First Appellate Court the plaintiff has filed this Regular Second Appeal.

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The learned counsel contended that delay before the First Appellate Court was sufficiently explained and that he had produced documents to show that he was

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indisposed and was not in a position to pursue the appeal. On the contrary, the learned counsel for defendants No.1 and 2 contended that the suit was highly belated and that the explanation offered by the plaintiff was not sufficient and not proved by documentary evidence.

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I have given my anxious consideration to the arguments canvassed by the learned counsel for the parties.

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The expression, “sufficient cause” must receive liberal construction so as to advance substantial justice. While considering the issue of condonation of delay, what is important is not length of delay, but sufficiency of cause for delay and what constitutes sufficient cause depends on the facts of each case. In the present case, the plaintiff’s claim for partition and separate possession of his share in suit Items No.1 and 2 was refused by the Trial Court. The plaintiff contended that he was deprived of financial means to pursue this appeal. He also contended that he was suffering from ill-health and had placed on record Exs.P-7

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and 8 which were the lab reports which indicated that the plaintiff was suffering from diabetes. It is seen from the cause title that the plaintiff was aged 36 years in the year 2005 when the suit was filed and was thus aged 44 years when the appeal was filed before the First Appellate Court.

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It is seen that apart from suit Items No.1 and 2, what was available to the family was only suit Item No.3 which is 10 guntas of land and defendant No.1 had gifted the suit Items No.1 and 2 to defendant No.2. Therefore, the plaintiff could not have cultivated a mere 10 guntas of land to eke out his livelihood. Therefore, his contention that he was wandering from village to village to eke out his likelihood seems probable. In addition, his contention that he did not have the wherewithal to pursue the appeal remedy before the First Appellate Court also seems probable, in view of his piquant financial condition.

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In addition to the above, Exs.P-7 and P-8 makes it more than probable that the plaintiff was suffering from ill-health due to diabetes. In that view of

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the matter, since the substantial right of the plaintiff was involved, the First Appellate Court ought to have considered the case of the plaintiff liberally rather than giving a strict interpretation of the word “sufficient cause” found in Section 5 of the Limitation Act. In that view of the matter, this appeal is allowed and the order passed by the First Appellate Court deserves to be set aside.

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However, this cannot be without any cost payable by the plaintiff so as to compensate the defendants for the time lost in the process. In that view of the matter, the impugned order passed by the First Appellate Court is set aside and the appeal is remanded back to the First Appellate Court. The plaintiff/appellant herein shall pay cost of Rs.10,000/- to defendant No.1 on the next date of hearing before the First Appellate Court. The parties shall appear before the First Appellate Court on

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10.06.2021 .

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Sd/JUDGE

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hnm

Nagaraju v. G B Rajasekhar

Case brief

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Nagaraju v. G B Rajasekhar

Case brief

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