Allowed

Smt. Bailavva v. Shivappa

Karnataka HC5 Nov 2024MFA/101015/2022

Case brief

AI extract

What is this about?

First appeal against decree of partition was dismissed for non-prosecution; restoration application was dismissed by the First Appellate Court. In this miscellaneous first appeal, the High Court allowed restoration of the regular appeal, holding that the valuable right of first appeal should not be denied absent compelling reasons, subject to payment of costs to the respondent.

What did the court decide?

Appeal allowed; order dated 24.11.2021 in Misc.Case No.4/2020 set aside; restoration application allowed; dismissal of R.A.No.31/2019 recalled and appeal restored, subject to payment of Rs.25,000/- co

Smt. Bailavva Vs Shivappa — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:16145 MFA No. 101015 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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MISCELLANEOUS FIRST APPEAL NO.101015 OF 2022 (CPC)

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BETWEEN:

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NAGAPPA S/O. BHARAMAPPA BASANAKOPPA, SINCE DECEASED BY HIS LRS.

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SMT. BAILAVVA W/O. NAGAPPA BASANAKOPPA, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVANTAR, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. DYAMAVVA W/O. SHIVAPPA JAMMIHAL, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: ALADAKATTI, TQ: KALAGHATAGI, DIST: DHARWAD.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

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SMT. NINGAVVA W/O. SHIVANAND MANAGULI, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: TALEMORAB, TQ: NAVALGUND, DIST: DHARWAD.

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CHANNABASAPPA S/O. NAGAPPA BASANAKOPPA. AGE: MAJOR, OCC: AGRICULTURE, R/O: BELAVANTAR, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. KAMALAVVA W/O. SHIVAPPA KARLATTI, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVANTAR, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. NIMBAVVA W/O. MAHADEVVAPPA AGADI, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVANTAR, TQ: KALAGHATAGI, DIST: DHARWAD.

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2 - NC: 2024:KHC-D:16145 MFA No. 101015 of 2022

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SMT. SHIVAGANGAVVA W/O. PARAPPA KELAGERI, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: ALADAKATTI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. MAHADEVI W/O. SHIVAPPA KUBYAL, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAKIHONNALLI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI ASHOK S/O. BHARAMAPPA BASANAKOPPA, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVANTAR, TQ: KALAGHATAGI, DIST: DHARWAD.

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MISS. AISHWARYA D/O. MUDAKANAGOUDRA PARAWTAGOUDAR, AGE: 07 YEARS, OCC: NIL.

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MISS AKSHATA D/O. MUDAKANAGOUDRA PARAWATAGOUDAR, AGE: 04 YEARS, OCC: NIL, SINCE BOTH 10 AND 11 ARE MINOR REPTD BY THEIR NATURAL FATHER MUDAKANAGOUDRA PARAWATAGOUDAR, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: HUBBALLI, DIST: DHARWAD.

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…APPELLANTS

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(BY SRI MALLIKARJUN C. HUKKERI, ADVOCATE)

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AND:

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SHIVAPPA S/O. BHARAMAPPA BASANAKOPPA, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: BELAVANTAR, TQ: KALAGHATAGI

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…RESPONDENTS

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(BY SRI S.G.NANDOOR, ADVOCATE)

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THIS MFA IS FILED U/O.XLIII RULE 1(T) OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL THE RECORDS AND ALLOW THE APPEAL BY SETTING ASIDE THE ORDER PASSED IN MISC NO.4/2020 DATED 24.11.2021 BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KALAGHATAGI AND ALSO SETASIDE THE ORDER PASSED IN R.A.NO.31/2019 DATED 06.10.2020 AND TO RESORTED R.A.NO.31/2019 ON ITS ORIGINAL TO ADJUDICATE ON MERITS IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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NC: 2024:KHC-D:16145 MFA No. 101015 of 2022

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present appeal is filed challenging the order dated 24.11.2021 passed in Misc. Case No.4/2020 by the Senior Civil Judge and JMFC., Kalaghatagi¹ .

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The relevant facts leading to the present appeal are that the respondent herein instituted a suit in O.S.No.141/2014 before the Court of Civil Judge and JMFC., Kalaghatagi² for declaration and partition. The appellants herein arrayed as the defendants in the said suit.

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The Trial Court by the judgment and decree dated 29.03.2019 decreed the suit and held that the respondent/plaintiff was entitled 1/8^th share in the suit properties. Being aggrieved, the appellants preferred

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1 Hereinafter referred to as ‘the First Appellate Court’

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2 Hereinafter referred to as ‘the Trial Court’

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4 - NC: 2024:KHC-D:16145 MFA No. 101015 of 2022

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R.A.No.31/2019. The said appeal was dismissed for nonprosecution on 06.10.2020. To recall the order of dismissal and for restoration of R.A.No.31/2019, the appellants preferred Misc.No.4/2020 before the First Appellate Court. Since the said miscellaneous application was filed belatedly, the appellants preferred an application under Section 5 of the Limitation Act to condone the delay.

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The respondents entered appearance in the said proceedings and contested the same. Evidence was adduced in the said proceedings. The First Appellate Court by its order dated 24.11.2021 allowed the application filed under Section 5 of the Limitation Act and condoned the delay in filing Misc.No.4/2020. However, it dismissed the Misc.No.4/2020. Being aggrieved, the present appeal is filed.

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Heard the submissions of learned counsel Sri M.C. Hukkeri for the appellants and the learned counsel Sri S. G. Nandoor for the respondent.

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Learned counsel for the appellants submits that the appellants having preferred R.A.No.31/2019, due to the Covid-19 pandemic they were unable to effectively prosecute the said appeal and the appellants had demonstrated that they had valid and proper grounds for restoration of the said appeal which has not been properly appreciated by the First Appellate Court while considering the restoration application. He seeks for an opportunity to contest the first appeal. Hence, seeks allowing of the above appeal.

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Per contra , learned counsel for the respondent vehemently opposing the said appeal submits that the material on record has been adequately appreciated by the First Appellate Court and the First Appellate Court has recorded the findings that there were no bona fide reasons for the non-appearance of the appellants or the counsel on the date fixed for hearing of R.A.No.31/2019. Learned counsel further refers to the statements made by PW.1 in the cross-examination in the restoration proceedings and

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6 - NC: 2024:KHC-D:16145 MFA No. 101015 of 2022

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contends that the First Appellate Court was justified in dismissing the Misc.No.4/2020 and the said order ought not to be interfered with this Court in the present appeal.

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The submissions of both the learned counsels

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have been considered and the material on record has been perused.

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The relevant facts situation is undisputed in as much as the suit for declaration and the partition filed by the respondent in O.S.No.141/2014 has been decreed vide judgment and decree on 29.03.2019 which is the subject matter for consideration in R.A.No.31/2019. Further admittedly R.A.No.31/2019 was dismissed on 06.10.2020.

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Although the PW.1 was examined in the restoration proceedings has given various answers wherein he is not aware of the details/particulars of the restoration proceedings and although the learned counsel for the respondent would point out that the appellants were prosecuting an other suit and was not appearing in the

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regular appeal, having regard to the fact that around the time of dismissal of R.A.No.31/2019, the Covid-19 pandemic situation was existing and keeping in mind the fact that the suit in O.S.No.141/2019 valuable rights of parties have been adjudicated upon and as also that the appellants having invoked their right to first appeal by filing R.A.No.31/2019, ordinarily the right of first appeal ought not to be denied to an aggrieved party. The right of first appeal is a valuable one and in the absence of compelling reasons, ought not to be denied.

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Having regard aforementioned it is expedient

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that the appellants be granted other opportunity to prosecute R.A.No.31/2019 subject to certain terms.

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In view of the aforementioned, the following:

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ORDER

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i) The above appeal is allowed subject to the appellants paying the respondent cost of

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Rs.25,000/- on the date fixed for appearance before the First Appellate Court.

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ii) The order dated 24.11.2021 passed in Misc. Case No.4/2020 by the Senior Civil Judge and JMFC., Kalaghatagi dismissing the said application is set aside.

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iii) Misc.No.4/2020 filed by the appellants before the Senior Civil Judge and JMFC., Kalaghatagi is allowed, the order dated 06.10.2020 dismissing R.A.No.31/2019 is recalled and R.A.No.31/2019 is restored to file.

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iv) The appellants and the respondent shall appear before the First Appellate Court in R.A.No.31/2019 on 29.11.2024 without the requirement of any fresh notice being issued to the notice in that regard.

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v) The appellants shall pay the respondent the cost of Rs.25,000/- on the date of appearance

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NC: 2024:KHC-D:16145 MFA No. 101015 of 2022

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before the First Appellate Court i.e. on 29.11.2024. In the event, the respondent refuses to receive the said sum of Rs.25,000/-, the same shall be deposited by the appellants before the First Appellate Court. In the event, the appellants fail to pay/deposit the cost of Rs.25,000/- as ordered above, the appellants shall lose the benefit of this order.

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vi) Pursuant to the appearance of the parties, the First Appellate Court shall conduct further proceedings in R.A.No.31/2019 in accordance with law.

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vii) All contentions of the parties left open.

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Sd/(C.M. POONACHA) JUDGE

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SSP CT-ASC List No.: 1 Sl No.: 43

Smt. Bailavva v. Shivappa

Case brief

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Smt. Bailavva v. Shivappa

Case brief

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