Dismissed

Sri Balappa v. Sri Ramaiah

Karnataka HC9 Dec 2022RSA/1811/2015

Case brief

AI extract

What is this about?

In this second appeal regarding a partition suit, the High Court dismissed the appeal filed by the unsuccessful defendants. The court rejected their plea to dispute the plaintiff's status as their father and upheld the lower court's decree granting the plaintiff a share, citing inordinate delay and the defendants' failure to contest.

What did the court decide?

The second appeal was dismissed with no substantial question of law arising for consideration.

Sri Balappa Vs Sri Ramaiah — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.S.A NO.1811 OF 2015 (PAR)

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BETWEEN:

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SRI.BALAPPA S/O LATE YELLAPPA AGED ABOUT 75 YEARS

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SRI.VENKATESH S/O BALAPPA AGED ABOUT 36 YEARS

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SRI.VENUGOPAL S/O BALAPPA AGED ABOUT 32 YEARS

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ALL ARE RESIDING AT CHIKKABANAHALLI VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK BENGALURU - 67

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...APPELLANTS

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(BY SRI. KALYAN R, ADVOCATE AND SRI.VENUGOPAL G.M., ADVOCATE)

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AND:

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SRI.RAMAIAH S/O BALAPPA AGED ABOUT 44 YEARS

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R/AT GUNIAGRAHARA VILLAGE SHIVAKOTE POST HESSARAGHATTA HOBLI BENGALURU EAST TALUK – 560088

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SMT.CHANDRAMMA D/O BALAPPA AGED ABOUT 40 YEARS R/AT GUNIAGRAHARA VILLAGE SHIVAKOTE POST HESSARAGHATTA HOBLI BENGALURU EAST TALUK - 560088

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…RESPONDENTS

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(BY SRI.M.KRISHNA MURTHY, ADVOCATE FOR R.1; SRI.M.R.RUKMANGADHA, ADVOCATE FOR R.2)

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THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.09.2015 PASSED IN R.A.NO.2/2015 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND FILED AGAINST THE ORDER DATED 26.11.2012 PASSED IN O.S.NO.669/2010 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALUR RURAL DISTRICT, BENGALURU.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.10.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful defendants feeling aggrieved by the concurrent findings of the Courts below, wherein the plaintiff's suit for partition and

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separate possession is decreed granting 1/5^th share in the suit schedule properties.

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For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

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The plaintiff filed a suit by contending that he is the son of Balappa. It is the specific case of the plaintiff that he along with defendant No.4 are the children of defendant No.1 through his first wife. The plaintiff further pleaded that defendant Nos.2 and 3 are the sons of defendant No.1 thorough his second wife. The plaintiff claims that he constitutes an Hindu Undivided Joint Family and therefore, claims to be the joint possession of the suit properties. The plaintiff has further pleaded that suit schedule properties were originally granted in favour of great grand father by name Venkataramanappa and after his death, suit properties have fallen to the share of his grand father. The present suit is filed alleging that defendant No.1, in spite of repeated requests,

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has declined to effect partition by metes and bounds and hence, the present suit.

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On receipt of summons, the defendants tendered

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appearance and engaged a counsel on their behalf.

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The defendants, however, failed to contest the

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proceedings by filing written statement. The plaintiff to substantiate his claim lead in evidence and produced documents, which were marked as Exs.P.1 to 23. The defendants, however, failed to cross-examine the plaintiff. The Trial Court having examined the documents produced by the plaintiff proceeded to hold that plaintiff has succeeded in proving that suit schedule properties are joint family ancestral properties and that the plaintiff is entitled for 1/5^th share in the suit schedule properties.

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Feeling aggrieved by the judgment and decree of the Trial Court, the defendants have preferred an appeal in R.A.No.2/2015. The Appellate Court, while considering the

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delay application, found that there is a delay of 764 days in filing the regular appeal. On meticulous examination of the explanation offered by the defendants, the Appellate Court was not inclined to accept the reasons assigned in the affidavit filed in support of the application filed under Section 5 of the Limitation Act. The Appellate Court was of the view that delay is not properly explained. Therefore, the Appellate Court proceeded to dismiss the application filed in I.A.No.1. Consequently, the appeal is dismissed. The defendants are in second appeal.

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Learned counsel appearing for the defendants would vehemently contend that Appellate Court erred in dismissing the appeal on the ground of delay. It is the case of the plaintiff that he has failed to establish his relationship with Balappa. Learned counsel appearing for the defendants contended that defendant Nos.2 and 3 are only children of Balappa and therefore, entire burden was on the plaintiff to prove that he is a legitimate child born through alleged first

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wife. The status of plaintiff was seriously disputed by the learned counsel appearing for the defendants. To buttress his arguments, he has also placed reliance on the judgment rendered by the Co-ordinate Bench of this Court in the case of

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SHRI.KENCHEGOWDA V.S K.B.KRISHNAPPA AND

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OTHERS¹ .

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Since the defendants have disputed the status, the learned counsel appearing for the plaintiff filed memo dated 16.09.2022 and along with memo, he has produced copies of the Aadhar Card, Election Identity Card, Ration Card and Transfer Certificate to counter the allegations made by the defendants before this Court questioning the status of plaintiff. Referring to this document, he would contend that plaintiff's relationship with Balappa was never disputed by the defendants. The defendants inspite of sufficient opportunities have neither contested the proceedings by filing written statement nor they have chosen to cross-examine the plaintiff.

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1 ILR 2008 KAR 3453

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Therefore, the defendants, at this juncture, cannot question the status of the plaintiff with that of Balappa. Referring to the observations made by the Appellate Court, he would contend that suit for partition was decreed on 26.11.2012. He would further point out that defendant No.1 was served with notice in final decree proceedings on 01.08.2013. Therefore, he would contend that delay from the year 2013 till filing of the regular appeal, which was filed on 03.01.2015, is not at all explained. Therefore, he would contend that the order passed by the Appellate Court in rejecting the application and consequently, dismissing the appeal would not warrant any interference at the hands of this Court.

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Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff.

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The defendants have failed to contest the suit. The plaintiff has lead in oral and documentary evidence. The Trial Court has proceeded to decree the suit granting 1/5^th share to

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the plaintiff. As rightly pointed out by the learned counsel appearing for the plaintiff, defendant No.1 was served with notice in the final decree proceedings on 01.08.2013 and there is no explanation forthcoming as to why the defendants could file an appeal only on 03.01.2015. The inordinate delay and dilatory tactics employed by the defendants only to protract from handing over the possession based on the preliminary decree is quite known and it is often found that defendants in a partition suit make all possible efforts to delay the adjudication of rights in a partition suit. Therefore, in this context, the inordinate delay in filing the appeal cannot be so liberally condoned.

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The Hon'ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER .VS.

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MST.KATJI AND OTHERS² has laid down illustrative contours under which an application for condonation of delay requires

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2 AIR 1987 SC 1353

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to be examined. It has been held in the aforesaid judgment to the following effect:

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"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy."

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In the light of the principles discussed supra, the question that needs to be examined is as to whether the defendants can be now permitted under Section 100 of CPC to dispute the status of plaintiff in absence of contest. Though

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learned counsel appearing for defendants has strenuously argued and tried to persuade this Court to remand the matter, this Court is not inclined to accede to the said arguments. A party, who is found to be gross negligent, cannot be extended any leniency. The laxness on the part of the defendants cannot be condoned. The reasons assigned by the Appellate Court while rejecting the application filed under Section 5 of the Limitation Act, would not warrant any interference. No material is placed by the defendants and no explanation is forthcoming for having approached the Appellate Court after inordinate delay of 764 days. In all probabilities, the defendants are in possession of the properties and are enjoying the suit properties. Therefore, the defendants have used all possible means and have succeeded in sitting on the fence and watching the proceedings. If the defendants are not diligent or their non-contest is tainted with malafides, the Appellate Court was justified in rejecting the application. In absence of contest, I do not find any illegality

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or infirmities in the judgment and decree rendered by the Trial Court. In absence of sufficient materials to demonstrate as to what prevented the defendants in preferring an appeal within a reasonable time, I am of the view that the Appellate Court was also justified in rejecting the application.

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No substantial question of law arises for consideration. Accordingly, the appeal is dismissed.

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Sd/JUDGE

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NBM

Sri Balappa v. Sri Ramaiah

Case brief

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Sri Balappa v. Sri Ramaiah

Case brief

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