Partly allowed

Sri Rangaswamaiah v. Sri Jagadeesh

Karnataka HC20 Mar 2023RSA/694/2014

Case brief

AI extract

What is this about?

The High Court allowed the second appeal in part, setting aside the First Appellate Court's order dismissing an application for condonation of a 137-day delay. The Court held that the delay was due to the appellant's paralysis and held him the Appellate Court should have heard the merits.

What did the court decide?

Impugned order dismissing I.A.No.I and the appeal set aside; I.A.No.I allowed; matter remitted to First Appellate Court to decide appeal on merits.

Sri Rangaswamaiah Vs Sri Jagadeesh — Succession and Inheritance | Karnataka HC (2023)

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RSA No. 694 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 694 OF 2014

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BETWEEN:

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SRI RANGASWAMAIAH

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SINCE DECEASED BY HIS LRs

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1(a) SMT. KEMPARAJAMMA W/O.LATE RAQNGASWAMAIAH AGED ABOUT 68 YEARS

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2(b) SMT. SUNANDA D/O LATE RANGASWAMAIAH AGED ABOUT 46 YEARS

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Digitally signed by YASHODA KRISHNAPPA Location: HIGH COURT OF KARNATAKA

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3(c) SHRI LOKESH R S/O LATE RANGASWAMAIAH AGED ABOUT 42 YEARS

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4(d) SMT. UMA DEVI D/O LATE RANGASWAMAIAH AGED ABOUT 39 YEARS

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ALL ARE R/AT No.1046, 18^TH ‘C’ MAIN ROAD, RAJAJINAGAR 5^TH BLOCK, BANGALORE – 560 010.

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…APPELLANTS

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(BY SRI VISWANATH SETTY V, ADVOCATE)

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AND:

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SRI JAGADEESH S/O LATE LAKSHMIPATHI

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RSA No. 694 of 2014

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AGED ABOUT 53 YEARS.

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SRI JAYARAM S/O.LATE LAKSHMIPATHI AGED ABOUT 48 YEARS

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SRI RANGANATH S/O.LATE LAKSHMIPATHI AGED ABOUT 46 YEARS

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SRI GANGANNA @ K G GANGAIAH S/O LATE RANGAIAH @ GAVI RANGAIAH AGED ABOUT 56 YEARS

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SRI G GIRISH S/O K G GANGAIAH AGED ABOUT 53 YEARS

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SIR G PURUSHOTHAM S/O K G GANGAIAH AGED ABOUT 53 YEARS

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THE RESPONDENTS 1 TO 6 ARE R/AT NIDUVANDA VILLAGE SOMPURE HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123.

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SIR CHANNAPPA S/O DODDAIAH AGED ABOUT 63 YEARS R/AT DODDA HUCHAYYANAPALYA BYRANAYAKANAHALLI DHAKALE THYAMAGONDLU HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123.

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…RESPONDENTS

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(BY SRI G B NANDISH GOWDA, FOR SRI R B SADASHIVAPPA, ADVOCATE FOR R1 TO R6. R7 SERVED)

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RSA No. 694 of 2014

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.11.2013 PASSED IN R.A.NO.186/2012 ON THE FILE OF IV ADDL. DIST., AND SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED:14.12.2011 PASSED IN OS No.153/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE JMFC, DODDABALLAPURA TRAIL DISMISSED SUIT AND ETC.,

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiff seeking setting aside the order dated 30.11.2013 passed on I.A.No.I, in R.A.No.186/2012 by the IV Additional District and Sessions Judge, Doddaballapura, dismissing I.A.No.I, filed under Section 5 of the Limitation Act and consequently, dismissing

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the appeal filed by the appellant and also setting aside the judgment and decree dated 14.12.2011 passed in O.S.No.153/2006 by the Senior Civil Judge and J.M.F.C., Doddaballapura.

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The appellant (now dead, by LRs.,) was the plaintiff and respondent Nos.1 to 6 were defendant Nos.1 to 6 in O.S.No.153/2006 filed for the relief of declaration and

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injunction, to declare that the plaintiff is the absolute owner of the ‘B’ schedule property and he is in possession of the same and consequently, declare the judgment and decree dated 04.09.1995 passed in O.S.No.255/2002 and R.A.No.5/2002 dated 30.10.2003 in respect of ‘B’ schedule property as it is collusive and fraudulent one and not binding on the plaintiff and also to declare the partition deed dated 09.01.2006 entered into between defendant Nos.1 to 6, registered on 09.01.2006, as a collusive document and not binding on the plaintiff and restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff, over the suit schedule property.

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The said suit in O.S.No.153/2006 came to be dismissed by judgment and decree dated 14.12.2011, by the Senior Civil Judge and J.M.F.C, Doddaballapura. The plaintiff has challenged the said judgment and decree passed in O.S.No.153/2006 dated 14.12.2011 in R.A.No.186/2012.

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There was a delay in filing the said appeal and an

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application has been filed in I.A.No.I, under Section 5 of the

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RSA No. 694 of 2014

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Limitation Act, seeking condonation of delay of 137 days in filing the appeal. The said application came to be resisted by respondent No.1 / defendant No.1, by filing the objections.

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The General Power of Attorney holder (for short hereinafter referred to as the ‘GPA holder’) of the plaintiff has filed his affidavit and examined as PW1 and got marked the documents as Exs.P1 and P2 and he has been cross examined.

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After hearing the parties and considering the evidence of

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PW1, an order came to be passed on I.A.No.I, rejecting it on 30.11.2013 and consequently, dismissing the appeal filed by the appellant / plaintiff. The said order has been challenged in the present appeal.

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The appeal came to be admitted to consider the following substantial question of law:

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“Whether the appellate court has erred in rejecting I.A.No.I filed under Section 5 of Limitation Act seeking condonation of delay of 137 days in filing the appeal and consequently dismissing the appeal.”

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RSA No. 694 of 2014

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Heard the learned counsel for the appellant and the learned counsel for the respondent Nos.1 to 6.

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Learned counsel for the appellant would contend that the First Appellate Court did not consider the reasons assigned by the appellant in seeking condonation of delay in a proper perspective and has not considered the documents and dismissed I.A.No.I, on technicalities. The First Appellate Court ought to have condoned the delay, considering the cause shown, liberally. The delay sought to be condoned is not an abnormal delay and not within the control of the appellant. The appellant was suffering from paralysis and he was undergoing regular treatment and his son, who is a GPA holder is looking after him.

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Learned counsel for respondent Nos.1 to 6, would contend that the First Appellate Court has rightly appreciated the reasons assigned by the appellant and rightly held that the appellant has not put-forth sufficient cause for condoning the delay. The First Appellate Court has not committed any error in passing the said order on I.A.No.I, rejecting the application

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RSA No. 694 of 2014

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for condoning the delay of 137 days. There is no error committed by the First Appellate Court in passing the order on I.A.No.I, in R.A.No.186/2012.

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The appellant in R.A.No.186/2012 is one Sri.Rangaswamaiah and he was aged 68 years, as on the date of filing the suit in O.S.No.153/2006. The suit filed by him seeking declaration and injunction came to be dismissed by the judgment and decree dated 14.12.2011 passed in O.S.No.153/2006. Since, the said Sri.Rangaswamaiah suffered with stoke and as he was suffering from paralysis, his son filed appeal in R.A.No.186/2012 as his GPA holder. He filed I.A.No.I, under Section 5 of the Limitation Act, seeking condonation of delay of 137 days in filing the appeal. The said GPA holder who is the son of the appellant-Sri.Rangaswamaiah has filed an affidavit in support of the said application in I.A.No.I. In the said affidavit, he has assigned the reasons stated in Paragraph 3, which are as under:

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“ 3. I submit that my father Rangaswamaiah was suffering from body stroke since three years and unable

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RSA No. 694 of 2014

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to walk, speak and the Doctor has advised him for treatment daily. I further submit that since I am the only son for my father, I was held up in domestic affairs and I used to take my father to the hospital for followup treatment. Under these circumstances, after obtaining the certified copy of the Judgment and Decree, I could not able to contact my counsel and to give instructions to prepare the above appeal, since there is little delay in filing of the above appeal, I have come up with this application seeking condonation of the delay. Hence, the accompanying application.”

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Respondent No.1 filed the objections to I.A.No.I, denying the allegations of the application and the affidavit, contending that each day’s delay is not explained.

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The GPA holder of the appellant, namely, Sri.R.Lokesh tendered his affidavit, in lieu of examination-in-chief and he has been examined as PW1. The reasoning for condoning the delay are stated in Paragraph 3 of the said affidavit evidence which are as under:

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“ 3. I submit that my father Rangaswamaiah is aged about 74 years and since from January 2009 suffering from paralyze and he is not in a position to walk, speak,

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so also he is not in a position to hear anything properly. Hence, the Doctor who is looking after my father has advised to take treatment regularly. I further submit that I am the lonely son to my father and I have to lookafter his health by taking him to the hospital regularly as per the advise of the Doctor. I further submit that in addition to looking after the health of my father, I have to lookafter my family welfare. I further submit that even today my father/appellant is bedridden and he is not in a position to walk and speak, so also cannot hear properly. Hence, I am taking my father/appellant regularly to the Hospital for medical treatment. Under these circumstances, being a general power of attorney to my father/appellant, I could not contact my Counsel immediately after obtaining the certified copy of the judgment and decree and gave instructions to prepare the above Appeal. I further submit that there is little delay of 137 days in filing the above appeal and the same for the reasons stated supra.”

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In the cross examination, PW1 has admitted that he has appeared in the suit as his GPA holder and he is having good health.

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Exs.P1 and P2 are produced by the appellant in support

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of his contentions. Ex.P1 is the report of MRI of brain (brain of

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RSA No. 694 of 2014

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Sri.Rangaswamaiah, the appellant and it is dated 10.01.2009).

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In the said report, it is stated as under:

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“Impression: Bilateral parieto occipital chronic sub cortical and deep white matter Ischaemic changes.”

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Ex.P2 is the advice on discharge issued by the City Hospital dated 22.01.2010. In the said Ex.P2, it is mentioned that Sri.Rangaswamaiah, aged 73 years has been admitted on 15.01.2010 and he has been discharged on 22.01.2010, wherein there is a mention that there is a wound debridement and amputation of left 5^th toe, done on 17.01.2010 and he has been advised some medication.

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The said documents along with the statements made in - the affidavit of PW1 reveal that the appellant Sri.Rangaswamaiah was suffering from paralysis, since January, 2009 and he was not in a position to walk, speak and also he is not in a position to hear anything properly. PW1 has stated that he is looking after his father and he was taking him for treatment regularly. It is also stated that the appellant is

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RSA No. 694 of 2014

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bedridden and he is not in a position to walk and speak properly.

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18. The First Appellate Court has not appreciated the said

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aspect in a proper perspective. The First Appellate Court, on perusal of Ex.P2 came to the conclusion that he has not been admitted to the hospital after passing of the judgment. It is not the case of the appellant that he was admitted to the hospital after passing of the judgment.

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It is the case of the appellant’s GPA holder, who is his son, that he was taking care of his father who had suffered a paralytic stroke. The First Appellate Court ought to have considered the reasoning assigned and ought to have condoned the delay in filing the appeal liberally. If any applications are filed, seeking condonation of delay in filing the appeal, have to be considered leniently, in view of several decisions of the Hon’ble Apex Court. The delay sought to be condoned is not abnormal and it is only 137 days.

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RSA No. 694 of 2014

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In view of the above, the First Appellate Court ought to

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have allowed I.A.No.I, filed under Section 5 of the Limitation Act, seeking condonation of delay of 137 days in filing the appeal and ought to have heard the appeal on merits. The First Appellate Court has erred in rejecting I.A.No.I, filed under Section 5 of the Limitation Act, seeking condonation of delay of 137 days in filing the appeal and consequently, dismissing the appeal.

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Hence, the substantial question is answered in the affirmative. Accordingly, I proceed to pass the following;

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ORDER

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(i) The appeal is allowed in part .

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(ii) The impugned order dated 30.11.2013 passed in R.A.No.186/2012, dismissing I.A.No.I, filed under Section 5 of the Limitation Act and consequently, dismissing the appeal is set-aside.

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(iii) I.A.No.I, filed in R.A.No.186/2012 under Section 5 of the Limitation Act seeking

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RSA No. 694 of 2014

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condonation of delay of 137 days in filing the appeal stands allowed.

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(iv) The matter is remitted back to the First Appellate Court, to decide R.A.No.186/2012, in accordance with law.

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Registry to return the Appellate Court records.

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Sd/JUDGE

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GH List No.: 1 Sl No.: 15

Sri Rangaswamaiah v. Sri Jagadeesh

Case brief

What is this about?

What did the court decide?

Sri Rangaswamaiah v. Sri Jagadeesh

Case brief

What is this about?

What did the court decide?

What the court decided

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