Smt Mahadevi W/O Shiddappa Bagil Vs Smt Gourawwa W/O Ningappa Kamaladinni

THIS RSA FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK IN R.A. NO.50/2022 DATED 10.04.2024 AND ALSO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 01.02.2016 PASSED IN O.S. NO.144/2007 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GOKAK AND DECREE THE SUIT IN O.S.NO.144/2007 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, ORDERS WAS MADE THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)

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This appeal is preferred by the plaintiff challenging the judgment and decree dated 10.04.2024 in RA No.50/2022 on the file of I Additional Senior Civil Judge, Gokak (for short, hereinafter referred to as ‘First Appellate Court), dismissing the appeal and confirming the judgment and decree dated 01.02.2016 in OS No.144/2007 on the file of Additional Civil

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NC: 2025:KHC-D:2103 RSA No. 100426 of 2024

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Judge and JMFC, Gokak (for short, hereinafter referred to as ‘Trial Court’) dismissing the suit of the plaintiff.

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For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

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It is the case of the plaintiff that the plaintiff and defendants are the children of Bhimappa, who died leaving behind the suit schedule property to be succeeded by the plaintiff and defendants. The defendants denied the share of the plaintiff and as such the plaintiff has filed OS No.144/2007 before the Trial Court seeking relief of partition and separate possession in respect of the suit schedule properties.

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On service of notice, the defendants entered appearance however, not contested the matter.

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The Trial Court based on pleadings, has formulated the points for consideration. In order to establish their case plaintiff has examined two witnesses as PW1 and PW2 and produced 07 documents and same were marked as Ex.P.1 to P7. No evidenced on the part of the defendants.

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The Trial Court after considering the material on record by judgment and decree dated 01.02.2016, dismissed the suit. Being aggrieved by the same, the plaintiff has

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4 - NC: 2025:KHC-D:2103 RSA No. 100426 of 2024

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preferred RA No.50/2022 before the First Appellate Court. In view of delay in filing the appeal, plaintiff/appellant has filed application in IA No.1 under Section 5 of Limitation Act, seeking condonation of the delay. The said application was dismissed by the First Appellate Court, consequently, the appeal fails. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal.

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This Court on 01.02.2025 formulated the following substantial question of law;

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“1) Whether the First Appellate Court has committed an error in not considering the sufficient cause “under section 5 of the Limitation Act”?

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d) Whether the First Appellate Court has committed an error in dismissing the appeal without considering the fact that the suit is one for relief of partition?”

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I have heard Sri. Shriharsh A. Neelopant, learned

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counsel appearing for the appellant and Sri. L. M. Kurahatti, learned counsel appearing for the respondent Nos.2 and 4.

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It is submitted by learned counsel appearing for the appellant that the suit filed by the plaintiff seeking relief of partition and separate possession and therefore, the First

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NC: 2025:KHC-D:2103 RSA No. 100426 of 2024

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Appellate Court ought to have considered the reasons set out in the affidavit accompanying application in IA No.1 liberally and accordingly, sought for interference of this Court.

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Per contra, learned counsel appearing for the respondents, sought to justify the impugned judgment and decree passed by the Courts below.

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In the light of the submission made by learned counsel appearing for the parties, it is not in dispute that the appellant herein is the plaintiff, filed suit seeking relief of partition and separate possession in respect of the suit schedule properties. Suit came to be dismissed and as such the plaintiff has filed RA No.50/2022. The appellant herein has stated that she was ill-health and due to pandemic Covid – 19, has not filed the appeal in time.

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Considering the nature of relief sought for by the appellant though there is delay of 6 and ½ years in preferring the appeal however, considering the reasons set out in the affidavit accompanying the application by the appellant, filed under Section 5 of Limitation Act, I am of the view that, ‘sufficient cause’ has been shown to condone the delay in preferring the appeal. It is also to be noted that the appellant

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NC: 2025:KHC-D:2103 RSA No. 100426 of 2024

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was diligent in pursuing the proceedings however, on account of ill-health and prolonged medical requirement, appeal was not filed within time, however, same could be compensated by imposing reasonable costs to the appellant taking into consideration the arguments advanced by the learned counsel appearing for the respondents.

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In that view of the matter, following the declaration of law made by Hon’ble Supreme Court in the case of the Shakuntala Devi Jain Vs. Kuntal Kumari and Others¹ , and in the case of Esha Bhattacharjee Vs. Managing Committee

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of Raghunathpur Nafar Academy and Others² , the appellant has made out a case for interference and the substantial question of law framed above favours the plaintiff/appellant herein. Hence, I pass the following:

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ORDER

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i. Appeal is allowed.

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ii. Judgment and decree dated 10.04.2024 in

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RA No.50/2022 on the file I Additional Senior Civil

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Judge, Gokak, is hereby set aside by allowing IA

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1 AIR 1969 SC 575

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2 (2013) 12 SCC 649

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No.1 filed by the appellant herein under Section 5 of Limitation Act before the Family Court subject to the appellant/plaintiff is directed to pay costs of Rs.10,000/- to the defendants / respondents herein within a period of four weeks from the receipt of this order.

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iii. Since, the parties are represented through their learned counsel and in order to avoid further delay in the matter parties are directed to appear before the First Appellate Court on 03.03.2025 at

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11.00 a.m. on their appearance, the First Appellate Court is requested to dispose of the appeal at the earliest.

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Sd/(E.S.INDIRESH) JUDGE

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SMM List No.: 1 Sl No.: 42

Smt Mahadevi W/O Shiddappa Bagil v. Smt Gourawwa W/O Ningappa Kamaladinni

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Smt Mahadevi W/O Shiddappa Bagil v. Smt Gourawwa W/O Ningappa Kamaladinni

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