Defendants in a partition suit challenged concurrent decrees, contending improper summons service and seeking condonation of a 2,443-day delay in appeal. The High Court found no explanation for their inaction after notice in final decree proceedings and dismissed the second appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 577 OF 2023 (PAR)
BETWEEN:
R/AT GODLUMUDDENAHALLI VILLAGE, VIJAYAPURA HOBLI, DEVANAHALLI TALUK-562 110.
R/AT ADHURU VILLAGE, BIDARAHALLI HOBLI,
BANGALORE EAST TALUK-560 049.
Digitally signed by SUMA B N Location: High Court of Karnataka
BOTH ARE R/AT ADHURU VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK-560 049.
APPELLANTS ARE REPRESENTED BY THEIR GPA HOLDER, SRI.N.MUNIKRISHNAPPA, S/O LATE NARAYANAPPA, AGED ABOUT 56 YEARS,
R/AT ASHOK NAGAR, WARD NO.1, VIJAYAPURA TOWN, DEVANAHALLI TALUK - 562 110.
…APPELLANTS
(BY SRI.CHOKKAREDDY, ADVOCATE)
AND:
D/O LATE A. BYREGOWDA, AGED ABOUT 33 YEARS, R/AT BIDARAHALLI CROSS, BIDARAHALLI HOBLI, BENGALURU EAST TALUK - 560 049.
ATTIBELE HOBLI, ANEKAL TALUK-560 049.
…RESPONDENTS
(BY SRI.GOPALA KRISHNAMURTHY, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 21.02.2023 PASSED IN RA NO.95/2017 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.07.2010 PASSED IN OS NO.950/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE (R) DISTRICT, BANGALORE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by defendant Nos.2, 3 and 4 aggrieved by the judgment and decree passed in O.S.No.950/2009 dated 02.07.2010 on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru which was confirmed by the judgment and order in RA No.95/2017 dated 21.01.2023 on the file of IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru.
2. Whether the plaintiffs are entitle for the relief of partition?
3. Whether the 1st defendant is entitle for the relief claimed?
4. What order or decree?"
application as well as the appeal memorandum, the First Appellate Court framed following points for consideration.
1. Whether the appellants have made out grounds to condone the delay of 2443 days in preferring the appeal as sought in I.A.No.1?
2. Whether the learned trial Court is justified in decreeing the suit of the plaintiffs filed in O.S.No.950/2009 dated 02.07.2010?
3. Whether the learned trial Court is justified in allowing FDP No.45/2010 dated?
4. What order?
9. Being aggrieved by the same, the defendant
Nos.2 to 4 are before this Court.
respondents/plaintiffs pursuant to the Final Decree Proceedings initiated by the plaintiffs.
(e) That immediately thereafter, appellants/defendant Nos.2 to 4 filed Miscellaneous Petition in Misc.No.62/2013 before the Trial Court. That the said Miscellaneous Petition was disposed of as not maintainable, on the premise that Final Decree Proceedings was completed.
the evidence, failed to advert to a reasoning assigned by the parties. Thus, he submits that
the appellants had afforded sufficient reason for condoning the delay of 2,443 days which has not been appreciated by the First Appellate Court resulting in dismissal of the appeal, causing prejudice to the rights of the parties, giving rise to substantial question of law, warranting indulgence at the hands of this Court.
(a) Admittedly, notice in Final Decree Proceedings were served on appellants on 11.03.2011 and they filed miscellaneous petition only on 30.09.2013 that is after lapse of two and half years and no explanation of any nature, what so ever is provided by the appellants for this inordinate delay of two and
NC: 2024:KHC:9011 RSA No. 577 of 2023
half years in filing the miscellaneous
proceedings.
served in the Final Decree Proceedings is to the same address which was provided in the Original Suit. Therefore, he submits the presumption has to be drawn that the defendants have deliberately kept themselves away from the proceedings, that the reasoning assigned by the First Appellate Court is based on the evidence adduced by the parties warranting no interference.
prevented from participating in the suit for partition, filed by the defendants for want of proper service of summons. The address of the appellants found in the cause title of the suit is 'Adhuru Village, Bidarahalli Hobli, Bangalore
NC: 2024:KHC:9011 RSA No. 577 of 2023
East Taluk'. The address of appellant Nos.2 and 3 before the First Appellate Court and in the present appeal is also as that of the one given in the suit.
the appellants is to be considered in the interest of justice, no explanation is provided of any nature, what so ever by the appellants for they not taking any action soon after the receipt of notice on 11.03.2011 issued by the FDP Court for nearly two and half years. Though, the learned counsel for appellants contended that appellant No.1 is not residing in the said village and that she is residing at Godlumuddenahalli Village, Vijayapura Hobli, Devanahalli Taluk, no explanation is given as to the reasons why defendant Nos.3 and 4 did not taking any action, who are admittedly, residing in the same address. The First Appellate Court has also taken note of the fact that though the contention that the appellant No.1 in not residing in Godlumuddenahalli Village, Vijayapura Hobli, Devanahalli Taluk is taken, the witness has not entered the witness box to produce the relevant document justifying said contention of the appellant No.1.
NC: 2024:KHC:9011 RSA No. 577 of 2023
NC: 2024:KHC:9011 RSA No. 577 of 2023
appellants seeking setting aside of the exparte decree if possible.
question of law would arise for consideration. Accordingly, Appeal is dismissed confirming the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court.
Sd/JUDGE
KAV List No.: 2 Sl No.: 3
1 issue framed by the court
Whether a substantial question of law arose regarding the First Appellate Court's refusal to condone a 2,443-day delay in filing the appeal against the ex parte partition decree.
2 provisions across 2 enactments
Smt. Manjula @ Manjamma
Sri. Anjinappa
Sri. Venkatesh
Smt. Asha
Smt. Sudha
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
