Sathyamurthy @ Satisha Vs Shanthakumari

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE ORDER DATED 13.04.2023 PASSED ON IA NO.1 IN R.A.NO.7/2020 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, ARASIKERE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 03.07.2018 PASSED IN O.S.NO.163/2017 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard

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learned counsel appearing for the appellant.

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The counsel appearing for the appellant would

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contend that no opportunity was given before the Trial Court and also before the First Appellate Court. The counsel also would contend that in the First Appellate Court also delay of 434 days was rejected, in coming to the conclusion that no

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HC-KAR

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proper reasons are assigned, inspite of reasons are assigned and documents are also produced for having taken treatment i.e., OPD chit of J.C. Hospital, Arsikere which shows that on 03.10.2018, Satisha took treatment for dengue fever. The scanning report also shows that he was diagnosed on 04.05.2019 and he took treatment in the month of October 2018. Hence, the approach of both the Trial court and the First Appellate Court is erroneous.

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Having perused the material available on record, suit is filed for the relief of partition and separate possession of her 1/5^th share in the suit schedule properties contending that suit schedule properties are joint family properties of plaintiff and defendants. The plaintiff is the daughter of defendant No.1 and other defendants are brothers and sisters of plaintiff and though defendant Nos.1, 3 and 4 are represented through counsel, personally appeared before the Court and sought time to engage counsel. Accordingly, they engaged the counsel and filed Vakalath on 26.04.2017 and thereafter even though time was given, written statement was not filed. Hence, taken as written statement not filed in the month of August 2017. Even when the evidence was not led by the plaintiff on three or four

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HC-KAR

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occasions, no attempt was made to file any written statement and ultimately, evidence was recorded on 19.03.2018 and suit was disposed of in the month of July 2018. Even after recording the evidence of plaintiff on 19.03.2018, no such effort was made to file written statement to contest the matter.

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It is also important to note that judgment was pronounced on 03.07.2018 and regular appeal was filed in 2020 with the delay of 434 days. No doubt, the counsel appearing for the appellant brought to notice of this Court that he was suffering from chicken guinea and kidney stones and got admitted as an inpatient in hospital and he was unable to file an appeal and hence there was a delay of 434 days, the respondents have filed objections to the application for condonation of delay and even evidence was recorded. In support of his contention, he produced the medical documents i.e., prescriptions and scanning report. The OPD chit of J.C. Hospital, Arsikere shows that on 03.10.2018, the appellant took treatment for dengue fever. The scanning report of Vismaya Scan and X-rays Center shows that Sathisha was diagnosed on 04.05.2019. But, the very document of OPD chit dated 03.10.2018 is contrary that he took treatment for dengue

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HC-KAR

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fever. But, scanning report is dated 04.05.2019 and again, he took treatment for dengue fever on 03.10.2018 and medical reports show that he underwent scanning on 04.05.2019 and report is also very clear that he is normal and there is nothing in the report to show that he was advised bed rest for further medical treatment and the same is also taken note of by the First Appellate Court while considering the delay and there was seven months gap from the previous medical report and even after the treatment also, he did not put any effort to file appeal till 2020 and what prevented him in filing the appeal immediately after taking the treatment also, nothing is stated and the same is also taken note of by the First Appellate Court while considering the delay. Hence, comes to the conclusion that there is no proper reasons given for the delay in filing the appeal and the appellant also not examined himself to prove regarding the delay and given an opportunity to the respondents to cross- examine him regarding the same, except production of the documents OPD chit and scanning report and not substantiated his case by entering into the witness box. Hence, the Trial Court did not accept the reasons assigned for delay is concerned, since there was a delay of 434 days.

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HC-KAR

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It is also important to note that having considered the claim made by the plaintiff also in respect of the suit schedule properties are ancestral properties, that too suit is filed by the daughter against the father and mother, sister and brothers and 1/5^th share is granted. Considering the genealogical tree which is placed along with the appeal also, there were 5 persons and hence, 1/5^th share is granted. When such being the case, I do not find any ground to admit and frame any substantial question of law.

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