Allowed

Smt Pushpavathi D S v. Smt Kamalamma

Karnataka HC18 Sept 2024RSA/1463/2023

Case brief

AI extract

What is this about?

This regular second appeal arose from the dismissal of a regular appeal due to delay and laches in a partition suit. The High Court held that the first appellate court erred in not considering reasons in the affidavit supporting condonation of delay and allowed the appeal, remanding the matter for fresh consideration.

What did the court decide?

Regular Second Appeal allowed; order of the First Appellate Court set-aside and matter remanded for fresh consideration.

Smt Pushpavathi D S Vs Smt Kamalamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1463 OF 2023 (PAR/POS)

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BETWEEN:

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SMT. PUSHPAVATHI D.S. W/O PRAKASH K.H., AGED ABOUT 45 YEARS, AGRICULTURIST, R/O DANAVADI VILLAGE, ARAKERE POST, BHADRAVATHI TALUK, SHIVAMOGGA - 577 203.

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…APPELLANT

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(BY SRI. K.V. SATEESHCHANDRA.,ADVOCATE)

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AND:

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SMT. KAMALAMMA W/O SHEKHARAPPA (DEAD)

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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SRI. UMESHA D.S. S/O SHEKHARAPPA AGED ABOUT 42 YEARS, AGRICULTURIST.

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SMT. MANJULA W/O UMESHA D.S. AGED ABOUT 40 YEARS, AGRICULTURIST.

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RESPONDENTS 1 AND 2 ARE R/O SARATHI HOSUR VILLAGE, CHANNAGIRI TALUK, DAVANAGARE DISTRICT - 577 213.

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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SMT. DRAKSHAYANAMMA D.S. W/O MALLIKARJUNAPPA AGED ABOUT 49 YEARS, AGRICULTURIST, R/O RAGI HOSAHALLI VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT - 577 213.

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SMT PREMA D.S. W/O TIPPESHAPPA AGED ABOUT 47 YEARS, AGRICULTURIST, R/O HUNASAGHATTA VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT - 577 213.

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…RESPONDENTS

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(BY SRI. DEVENDRAPPA, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 06^TH JULY, 2023 PASSED ON I.A. NO.1 IN REGULAR APPEAL NO.135 OF 2018 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE FILED AGAINST THE JUDGMENT AND DECREE DATED 18^TH AUGUST, 2016 PASSED IN ORIGINAL SUIT NO.12 OF 2014 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., CHANNAGIRI.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the plaintiff, assailing the judgment and decree dated 06^th July, 2023 passed in Regular Appeal No.135 of 2018 on the file of II Additional District and Sessions Judge, Davanagere (for short, hereinafter referred to

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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as 'First Appellate Court'), dismissing the appeal on the ground of delay and laches and as such, confirmed the judgment and decree dated 18^th August, 2016 passed in Original Suit No.12 of 2014 on the file of Senior Civil Judge and JMFC., Channagiri (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff came to be decreed in-part.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.

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It is the case of the plaintiff that the plaintiff, defendants 2, 4 and 5 are the children of defendant No.1 and late Shekharappa. That the suit schedule properties are the joint family properties and accordingly, plaintiff sought for share in the suit schedule properties by filing Original Suit No.12 of 2014 before the Trial Court.

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On service of notice, defendants entered appearance and filed written statement denying the averments made in the plaint and accordingly sought for dismissal of the suit.

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4 - NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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Based on pleadings on record, the Trial Court has formulated issues for its consideration.

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In order to establish their case, plaintiff examined herself as PW1 and got marked 16 documents as Exhibits P1 to P16. On the other hand, defendants have examined three witnesses as DW1 to DW3 and got marked 17 documents as Exhibits D1 to D17.

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The Trial Court, after appreciating the material on record, by judgment and decree dated 18^th August, 2016, decreed the suit of the plaintiff in-part. Being aggrieved by the same, the plaintiff preferred Regular Appeal No.135 of 2018

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before the First Appellate Court and the said appeal was resisted by defendants. There was delay of 736 days in preferring the appeal and as such, appellant/plaintiff has filed application IA No.1 under Section 5 of the Limitation Act, seeking condonation of delay. The First Appellate Court, after considering the material on record, by its order dated 06^th July, 2023, dismissed the application, consequently dismissed the appeal. Being aggrieved by the same, the appellant/plaintiff preferred this Regular Second Appeal.

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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This Court, vide order dated 04^th September, 2024, formulated the following substantial question of law:

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"Whether the first appellate court is justified in dismissing I.A.No.1 in R.A. No.135/2018 without considering the reasons stated in the affidavit accompanying the application in IA.No.1?"

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I have heard Sri. K.V. Sateeshchandra, learned

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counsel appearing for the appellant and Sri. Devendrappa, learned counsel appearing for the respondent No.1.

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It is submitted by Sri. K.V. Sateeshchandra, learned counsel for the appellant that the Trial Court has not properly appreciated the material on record and rejected the claim made by the plaintiff with regard to item Nos.2 to 6 of the suit schedule properties and same was questioned before the First Appellate Court. It is further submitted by the learned counsel appearing for the appellant that the appellant has filed affidavit with sufficient reasons to condone the delay in filing the appeal, however, the First Appellate Court, without considering the reasons stated in the affidavit accompanying application, passed the impugned judgment and decree, which requires interference in this appeal.

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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Per contra, Sri. Devendrappa, learned counsel appearing for the respondent No.1 sought to justify the impugned judgment passed by the First Appellate Court on IA No.1.

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Having taken note of the submissions made by the learned counsel appearing for the parties, controversy in the appeal is with regard to the share of the plaintiff in respect of item Nos.2 to 6 and same was rejected by the Trial Court. Undisputedly, there was a delay of 736 days in preferring the appeal before the First Appellate Court. Perusal of the reasons set out in the finding recorded by the First Appellate Court on IA No.1 shows that the appellant had met with an accident and sustained injuries and in this regard, Medical certificate has been produced before the First Appellate Court. Taking into consideration the said reasons as well as suit filed is one for possession in respect of the suit schedule properties, I am of the view that the First Appellate Court ought to have liberally construed the delay in filing the appeal in terms of the judgment of the Hon'ble Supreme Court in the case of

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SHANKUNTALA DEVI JAIN vs. KUNTAL KUMARI AND

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OTHERS reported in AIR 1969 SC 575 and in the case of ESHA

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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BHATTACHARJEE vs. MANAGING COMMITTEE OF

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RAGHUNATHPUR NAFAR ACADEMY AND OTHERS reported in ( 2013)12 SCC 649.

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Following the declaration of law made by the Hon'ble Supreme Court in the aforementioned judgments, I am of the view that, it is a fit case to allow the appeal and remand the matter to the First Appellate Court for fresh consideration.

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Accordingly, the substantial question of law framed above favours the appellant and as such, appeal deserves to be allowed and matter be remanded to the First Appellate Court to re-consider the case on merits by condoning the delay. In the result, I pass the following:

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O R D E R

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1. Regular Second Appeal is allowed;

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1. Order dated 06^th July, 2023 passed in Regular Appeal No.135 of 2018 on the file of II Additional District and Sessions Judge, Davanagere is set-aside and the matter is remanded to the First Appellate Court for fresh consideration.

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NC: 2024:KHC:39625 RSA NO.1463 OF 2023

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1. In order to avoid further delay in the matter, as the parties are represented by their learned counsels, parties are directed to appear before the First Appellate Court on 25^th October, 2024.

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SD/(E.S. INDIRESH) JUDGE

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ARK

Smt Pushpavathi D S v. Smt Kamalamma

Case brief

What is this about?

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Smt Pushpavathi D S v. Smt Kamalamma

Case brief

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