Wahida Begum Vs Dilip

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NC: 2025:KHC-D:7280 RSA No. 100169 of 2015

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF JUNE 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL NO.100169/2015 (INJ)

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BETWEEN:

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WAHIDA BEGUM W/O. MOHAMAD ISAQ PEERJADE, AGE: 75 YEARS, OCC: H/W, R/O: THALOBA PETH, NIPANI, DIST: BELAGAVI – 590 001.

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MOHAMMAD ISAQ S/O. KHUTHUBUDDIN PEERJADE, AGE: 80 YEARS, OCC: BUSINES, R/O: THALOBA PETH, NIPANI, DIST: BELGAVI – 590 001.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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APPELLANTS NO.1 AND 2 REPRESENTED BY MISS RUKHASANA MOHAMMADISAQ PEERJADE, AGE: 45 YEARS, R/O: NIPANI, APPELLANTS NO.1 AND 2 GPA HOLDER.

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… APPELLANTS

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(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)

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AND:

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DILIP S/O. APPASAHEB SHETAKE, AGE: 63 YEARS, OCC: BUSINESS, R/O: GHATE GALLI, NIPANI, DIST: BELAGAVI – 590 001.

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NC: 2025:KHC-D:7280 RSA No. 100169 of 2015

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HC-KAR

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BHUSHAN S/O. MADHUKAR SHETAKE, AGE: 29 YEARS, OCC: BUSINESS, R/O: NEAR GURUVAR PEATH GHATE GALLI NIPANI, TQ: CHIKODI, DIST: BELAGAVI – 590 001.

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DEEPALI D/O. MADHUKAR SHETAKE, AGE: 25 YEARS, OCC: STUDENT, R/O: NEAR GURUVAR PEATH GHATE GALLI NIPANI, TQ: CHIKODI, DIST: BELAGAVI – 590 001.

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ROOPALI D/O. MADHUKAR SHETAKE, AGE: 23 YEARS, OCC: STUDENT, R/O: NEAR GURUVAR PEATH GHATE GALLI NIPANI, TQ: CHIKODI, DIST: BELAGAVI – 590 001.

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… RESPONDENTS

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(BY SRI. M. G. GADGOLI, ADVOCATE FOR R1(ABSENT); NOTICE TO R2 TO R4 ARE HELD SUFFICIENT)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 22.11.2014 PASSED IN CIVIL MISC. NO.3/2012 ON THE FILE OF SENIOR CIVIL JUDGE CHIKODI CONFIRMING THE JUDGMENT AND DECREE DATED 0912.2011 PASSED IN O.S.77/2005 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC NIPANI TO MEET THE ENDS OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:7280 RSA No. 100169 of 2015

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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The present appeal is filed by defendant Nos.1

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and 2, being aggrieved by the judgment and order dated 22.11.2014, passed in Civil Misc. No.3/2012 on the file of

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the Senior Civil Judge, Chikkodi (for short “the First Appellate Court”) confirming the judgment and decree dated 09.12.2011 passed in O.S. No.77/2005 on the file of the Addl. Civil Judge and JMFC, at Nippani (herein after referred to as “the trial Court” ), by which the suit filed by the respondents – plaintiffs for the relief of permanent injunction, restraining the appellants – defendants from carrying out any construction work in the suit property, came to be decreed.

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The aforesaid Civil Miscellaneous No.3/2012 is filed by the appellants - defendants before the Senior Civil Judge, Chikkodi, aggrieved by the judgment and decree dated 09.12.2011 passed in the above suit No.77/2005. There was a delay of 30 days in filing the said appeal. An

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HC-KAR

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application under Section 5 of the Limitation Act was filed seeking condonation of delay. Taking serious exception to this delay, the First Appellate Court while rejecting the application filed under Section 5 of the Limitation Act seeking condonation of delay, dismissed the appeal.

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The above suit was filed by the respondents – plaintiffs, claiming to be the owners of the house property comprised in CTS No.1603-A, situated at Ghattegalli, Nippani, measuring 69-40 sq. meters, which consists of a house and a passage. The case of the plaintiffs is that, their house faces North and that they have a passage measuring approximately East-West 40-45 feets in length and NorthSouth 6 feet in width, located to the southern side of their house. The dispute pertains to this passage. The plaintiffs claim that they have been using this passage for the purpose of washing clothes, cleaning utensils, and occasionally as a bathing place.

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HC-KAR

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It is alleged that, defendant No.1 is the owner of

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the house property bearing CTS No.1600/1, situated at Thalobha Peth, Nippani. Defendant No.2 is the husband of defendant No.1. The house of defendant No.1 faces West, and there is a backyard on the Eastern side of their house, abutting the suit property. That the defendants, with the intention of denying the right of the plaintiffs over the suit passage were attempting to construct a Wall on the Northern side of their property, which lies adjacent to the Southern side of the plaintiffs’ property. It is this fact led to the filing of the suit.

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The trial Court decreed the suit as sought for, by the impugned judgment and decree dated 09.12.2011. The appeal filed by the appellants – defendants against the said judgment and decree in Civil Miscellaneous No.3/2012 was dismissed solely on the ground that there was a delay of 30 days in appellants – defendants approaching the First Appellate Court.

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HC-KAR

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In paragraph 13 of the impugned order, the First

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Appellate Court has opined that the judgment and decree passed in O.S. No.77/2005 was passed on 09.12.2011, and that the appeal ought to have been filed on or before 08.01.2012. However, the appeal was filed on 08.02.2012

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which is after a delay of 30 days beyond the prescribed period of limitation. The First Appellate Court further held that the appellants had not provided any explanation for the delay of each day, which resulted in dismissal of the appeal.

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Aggrieved by this, the present appeal is filed. This Court has admitted this appeal to consider the following substantial question of law:

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“Whether, in the facts and circumstances of the case, the First Appellate court was justified in not entertaining the regular appeal due to a delay of 30 days in its filing?”

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8. Learned counsel for the appellants submits that,

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the delay in filing of the appeal is due to the ill health of the appellant and that necessary documentary evidence was

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HC-KAR

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also produced in support of the said reason. He submits

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that the since the civil rights of the parties pertaining to immovable properties are involved, the First Appellate Court ought to have exercised its discretion to condone the delay, considering that it was a negligible period of 30 days. That the rejection of the application filed for condonation of delay has deprived the appellants of their statutory right to be heard, as conferred by law. Hence, the counsel seeks for allowing of the appeal and for remand of the matter for fresh consideration.

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Heard. Perused the records.

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The Apex Court in the case of Collector Land Acquisition, Anantnag and Another Vs. Katiji and

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Others reported in (1987) 2 SCC 107, has held that the expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice, that being the life purpose for the existence of institution of

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HC-KAR

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courts. It is has commended to adopt liberal approach while considering the application for condonation of delay. In the case at hand the reasons assigned for delay of 30 days in filing the appeal is the ill-health of one of the appellant which apparently was supported by documentary evidence.

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The dispute between the parties is in respect of usage of a piece of land which according to the plaintiffs was being used as suit passage and according to the defendants there was no such passage.

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Considering the facts and circumstances of the case as narrated above, the delay of 30 days ought to have been condoned by the First Appellate Court. Taking serious exception to such a delay in a case of this nature would prejudice the rights of the parties seeking adjudication of their civil rights.

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In the facts and circumstances of the case, and in light of the law laid down by the Apex Court in the case of Collector Land Acquisition, Anantnag and Another

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HC-KAR

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(supra), this Court deems it appropriate to allow the appeal by setting aside the judgment and order passed in Civil Miscellaneous No.3/2012 and to remand the matter to the

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First Appellate Court to consider the same on merits. Accordingly, following:

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ORDER

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i) Appeal is allowed.

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ii) Order dated 22.11.2014 passed in Civil Misc. No.3/2012 on the file of the Senior Civil Judge, Chikkodi, is set aside.

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iii) Delay of 30 days in filing the said appeal is condoned.

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iv) The First Appellate Court, after service of notice to the parties concerned, shall dispose of the matter as expeditiously as possible, and in any event within an outer limit of six months thereafter.

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v) The appellant shall pay cost of Rs.10,000/-, which shall be deposited

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