Dismissed

Sri Jagadeesh Chandra Prasad v. Smt Nagarathnamma D

Karnataka HC28 Mar 2024RSA/21/2024

Case brief

AI extract

What is this about?

This regular second appeal concerned a property dispute over a house in Holenarasipura. The appellant sought condonation of a significant delay in filing the appeal, citing relocation and the pandemic. The court found the delay inessential and insufficient, rejecting the application and dismissing the appeal.

What did the court decide?

Application for condonation of delay and the appeal were rejected/dismissed.

Sri Jagadeesh Chandra Prasad Vs Smt Nagarathnamma D — Partition | Karnataka HC (2024)

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 21 OF 2024 (DEC/INJ)

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BETWEEN:

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SRI. JAGADEESH CHANDRA PRASAD, S/O. H.S. MALLIKARJUNAIAH, AGED ABOUT 67 YEARS, HOSTEL WARDEN, RESIDING AT NEXT TO POLICE QUARTERS, MYSORE HASSAN ROAD, DR. AMBEDKAR NAGAR, HOLENARASIPURA, HASSAN DISTRICT - 571 112.

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…APPELLANT

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(BY SRI. PARASHIVA PRASAD H M, ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SMT. NAGARATHNAMMA D, W/O. LATE SIDDESHWARA, AGED ABOUT 68 YEARS, DR. AMBEDKAR NAGAR, HOLENARASIPURA, HASSAN DISTRICT - 571 112.

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…RESPONDENT

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THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.10.2020 PASSED IN RA.NO.36/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOLENARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.06.2015 PASSED IN OS.NO.186/2008 ON THE FILE OF THE CIVIL JUDGE, HOLENARASIPURA.

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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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 by the defendant aggrieved by the judgment and decree dated 23.06.2015 passed in O.S.No.186/2008 on the file of the Civil Judge and JMFC, Holenarasipura, (for short 'Trial Court') which is confirmed by the judgment and order dated 07.10.2020 passed in R.A.No.36/2015 on the file of Senior Civil Judge and JMFC, Holenarasipura (for short 'First Appellate Court').

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Subject matter of the suit is the house property bearing Municipal khatha No.3323 and assessment No.3105 measuring 27x31 feet situated at Holenarasipura town bounded by the boundaries as per plaint schedule (suit schedule property).

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The above suit is filed by the plaintiff for declaration to declare that the plaintiff is the absolute owner of the suit schedule property and for direction to the defendant to hand over vacant possession of the suit

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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schedule property, and for permanent injunction restraining the defendant and his agents from causing obstruction to the plaintiff in use and enjoyment of the suit schedule property.

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The brief facts of the plaintiff's case are that;

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(a). Her husband late Siddeshwara and father of the defendant late H.S.Mallikarjunaiah were brothers. Late Siddeshwara was the Government employee. That the families of late Mallikarjunaiah and late Siddeshwara had divided their properties before 1959. The brothers were residing separately. The husband of the plaintiff late Siddeshwara purchased a site from the Town Municipality, Holenarasipura on 12.04.1959 and constructed a house thereon. Thereafter, the said Siddeshwara and his wife that is present plaintiff were in possession and enjoyment of the suit schedule property. Subsequently, the suit schedule property was let out for Government Hostel for a few years on monthly rental basis and thereafter it fell

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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vacant. In the year 1992, the plaintiff's husband Siddeshwara died.

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(b). As there was cordial relationship between plaintiff and defendant's father and there was no support for the plaintiff, the defendant's father was permitted to occupy the suit property. The defendant's father was in permissive possession of the suit property. On 08.03.2001, the khatha of the suit schedule property was changed in the name of the plaintiff. The plaintiff was in need of the house for her own use, hence the plaintiff approached the defendant's father late Mallikarjunaiah and demanded for the possession of the house. But, the defendant's father denied the same. Then the defendant's father died. Thereafter, the plaintiff requested the defendant to vacate and hand over the suit property. But, the defendant did not hand over the same. Thereafter, the plaintiff caused issue of a notice to the defendant through her counsel on 18.12.2006. The notice duly served on the defendant. Thereafter the defendant though promised to

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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vacate the suit schedule property but failed. The defendant is intending to grab the valuable house. Hence, filed the suit.

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After service of summons, the defendant filed written statement denying the case of the plaintiff. It is contended that the suit property was purchased in the name of husband of plaintiff out of the joint family income. That in the partition that took place between plaintiff's husband and defendant's father, the suit property fell to the share of de defendant's father. Since from 1960 defendant's father was in possession and enjoyment of the suit property. In the partition the ancestral property was allotted to the share of plaintiff's husband. As the sale transaction is in the name of the plaintiff's husband, he had misused the same and filed the false suit after lapse of 50 years. Hence, prays for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property ?

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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2. Whether the plaintiff proves that the father of the defendant was in permissive possession of the suit schedule property ?

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3. Whether the plaintiff proves that she is entitled for the possession of the suit schedule property ?

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4. Whether the defendant proves that the suit schedule property was the joint family property and it fell to the share of his father in the partition in the family?

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5. Whether the plaintiff proves that he is entitled for the reliefs sought for ?

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6. To What Decree or Order?"

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The plaintiff examined herself as PW1 and exhibited 11 documents marked as Ex.P1 to Ex.P11. In order to prove their defence, defendant examined his power of attorney holder Smt.H.M.Mokshamrutha as DW1 and also examined eight additional witnesses as DW.2 and DW.9 and got marked 101 documents as Ex.D1 to Ex.D101. On appreciation of the evidence the Trial Court answered issue Nos.1 to 3 in the affirmative, issue No.4 in the negative and issue No.5 partly in the affirmative and consequently partly decreed the suit.

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Being aggrieved by the aforesaid judgment and decree defendant filed an appeal in R.A.No.36/2015 before the First Appellate Court. Considering the grounds urged the First

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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Appellate Court framed the following points for its

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consideration:

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"1. Whether the appellant proves that, the Judgment and decree passed by the trial Court is illegal?

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2. Whether the appellant proves that, the trial Court has passed the judgment without proper appreciation of oral and documentary evidence

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3.Whether the appellant proves that, the trial Court has erroneously answered issue no.4 in the negative ?

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4. Whether the appellant has made out grounds for setting aside the judgment and decree passed in 0.S.186/2008 ?

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5. Whether the judgment of the lower court calls for interference?

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6. To what order or decree?"

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The First Appellate Court on re-appreciation of the evidence dismissed the appeal and confirming the judgment and decree of Trial Court being aggrieved the present appeal.

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There is a delay of 572 days in filing the present appeal. An application in I.A.No.1/2024 is filed by the appellant seeking condonation of delay of said 572

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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days in filing the present appeal. In the affidavit accompanying the application after narrating the facts of the case in paragraphs 1 to 11, at para 12 the appellant has stated as under:-

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"It is to state that by knowing that the Appellant transfer to work in Bangalore and children's are studying in Bangalore at that time pandemic situation and being a senior citizen I was banned to move anywhere, by knowing this situation Respondent manage to obtain the order of alternative mode of paper publication in "Daily News VIJAYAVANI" instead of serve the notice, break open the lock through the court and same was informed by my neighbour and relative Mr. George who inform the situation with regard they breaking the lock to open and I rushed the court and filed my application for restoration of the status property but court rejected the application 07.09.2022."

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It is not the case of the appellant that he is not aware of the proceedings, and the passing of the judgment

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and decree by the Trial Court in O.S.No.186/2008 and same having been confirmed by the First Appellate Court

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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by judgment and order dated 07.10.2020. The appellant has only stated that he has re-located to Bangalore and he was prevented from movement due to COVID. Except this, no other reason is assigned.

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It is necessary to refer to the last sentence of the paragraph 12 of the affidavit wherein he has stated that on "learning about the possession having been taken by the plaintiff through the Court process he had rushed to the executing Court by filing an application for restoration of the property by filing an application and said application was rejected on 07.09.2022." No further reasons have been assigned in the affidavit seeking condonation of delay.

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Perusal of the affidavit would reveal that the application filed by the appellant before the Executing Court was rejected on 07.09.2022, instant. No reasons for the delay at least on and from 07.09.2022 till filing of this appeal on 02.01.2024, are assigned.

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10 -

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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It is settled by law that though while

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considering the application for condonation of delay

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sufficient cause is to be construed liberally, the same cannot be extended to litigant who is negligent and has deliberately not taken any steps immediately as learning about the order. The contents of the affidavit, more particularly, the appellant having approached the Executing Court and his application having been rejected as above and he not taking any action thereafter, would reveals that appellant was not interested in pursuing the matter. The Apex Court in the case of Pathapati Subba

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Reddy (Died) by Lrs and others Vs, The Special Deputy Collector (LA) reported in 2024 online SC 513 at Paragraph No.16 as held as under:

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"16. Generally, the courts have adopted a very liberal approach in construing the phrase 'sufficient cause' used in Section 5 of the Limitation Act in order to condone the delay to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice. In Collector, Land Acquisition, Anantnag v. Katiji, this Court in advocating the liberal approach in condoning the delay for 'sufficient cause' held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to

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NC: 2024:KHC:12939 RSA No. 21 of 2024

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explain every day's delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of 'sufficient cause' for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases 'liberal approach', 'justice-oriented approach' and cause for the advancement of 'substantial justice' cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act."

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Thus, there is no 'sufficient cause' shown as required

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under Section 5 of Limitation Act warranting interference

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and to condone the delay. Application is rejected consequently, appeal is also rejected.

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Sd/JUDGE

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Sri Jagadeesh Chandra Prasad v. Smt Nagarathnamma D

Case brief

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Sri Jagadeesh Chandra Prasad v. Smt Nagarathnamma D

Case brief

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