The High Court of Karnataka disposed of a regular second appeal filed against an order rejecting an application to condone delay. The Court held that the nearly three-and-a-half-year delay was not satisfactorily explained, especially after the appellants were aware of the court proceedings and decrees.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:33087 RSA No. 1958 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1958 OF 2017 (PAR)
BETWEEN:
AGED ABOUT 53 YEARS,
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
BOTH APPELLANT Nos.1 AND 2 ARE R/AT RANGAIANUR, GOLLARAHALLY VILLAGE, BAGUR HOBLI, HOSADURGA TALUK,
CHITRADURGA DISTRICT 577527.
…APPELLANTS
(BY SRI GOPALAKRISHNA MURTHY C., ADVOCATE)
NC: 2023:KHC:33087 RSA No. 1958 of 2017
AND:
GANGAMMA W/O KALEERAPPA, AGED ABOUT 46 YEARS, AGRICULTURIST, R/AT MADIHALLY VILLAGE, HUNASEKATTE POST, AMRUTHAPURA HOBLI, TARIKERE TALUK, CHIKMAGALUR DISTRICT 577535.
…RESPONDENT
(BY SRI M.R.PATIL, ADVOCATE FOR C/R)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE ORDER DTD: 28.06.2017 PASSED ON IA.NO.1 IN R.A.NO.278/2016 ON THE FILE OF THE SENIOR CIVIL, JUDGE AND JMFC., HOSADURGA, REJECTING I.A.No.1 AND DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD: 03.05.2013 PASSED IN O.S.NO.120/2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC., HOSADURGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellants and also the counsel appearing for the respondent. This matter is listed for admission.
defendant No.1 managing the joint family properties as kartha of the family. The defendants are disputing the very relationship between the parties in the suit and also contend that properties are the self acquired properties of their father of the defendants Chikkappa and the Trial Court having considered the material on record with regard to the relationship is concerned, answered the issue No.1 and 5 in the affirmative and issue Nos.2 to 4 and 6 in the Negative and photo was also confronted through the DW1 in the cross examination and when the suggestion was made that he is tying thaali on the plaintiff’s daughter and when he went to pooja, the same may be tied and PW2 also in his cross examination admitted about the relationship between the parties and taken note of the same and answered the issue No.1 as affirmative and now counsel contend that even relationship is not admitted. But, in the case on hand, it has to be noted that the appeal is filed after 3 years 4 days and an IA is filed before the appellate Court to condone the delay and in support of their case, appellants
have examined 3 witnesses as PW1 to PW3 and in the cross examination PW1 categorically admitted that he useD to visit each and every day to Trial Court and he was also aware of the fact that revenue entries are effected in terms of final decree and also he admits that final decree also drawn, only reason given by the appellant before the First Appellate Court with regard to delay is concerned that he was suffering from isubu (lupus). The PW2 and PW3 have been examined in support of their case but, PW1 categorically admitted that he did not take any treatment from the Doctor and also in fact he contend that he took
the treatment by one Chandrappa who is the pontiff Katteranganathaswamy temple and he was also not been examined before the appellate Court. The First Appellate Court having taken note of answers elicited from the mouth of PW1, disbelieved the very reasoning given by the appellant and there was delay of 3 years 4 days in filing the appeal. In paragraph No.8 to 10 in detail discussed and comes to the conclusion that the delay of each day has not been properly explained when there was a delay of
more than 1000 days, the same is not been explained by the appellant. Hence the appeal is dismissed on the ground of delay.
which are given by the appellants are not acceptable reasons and not satisfactorily explained before the Trial Court. I do not find any ground to set-aside the order of the First Appellate Court, when there is an in-ordinate delay in filing the appeal even though having the knowledge about the preliminary decree as well as the final decree and also he was visiting the Trial Court regularly when the case was pending before the Trial Court. Each day delay is not explained. Hence, the appeal is dismissed .
Consequently IAs’ which are pending if any are also dismissed .
Sd/JUDGE
RHS List No.: 1 Sl No.: 70
2 issues framed by the court
Whether the appeal filed against the first appellate court's order should be allowed despite a delay of approximately 3 years and 4 days.
Whether the illness (isubu/lupus) of the appellants constitutes a sufficient explanation for the inordinate delay in filing the appeal.
Mariyappa S/O Chikkanna
Nagamma W/O Late Kappakariyajja
Gangamma W/O Kaleerappa
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
