IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL NO.1790/2014 (INJ) BETWEEN :
1. A. YESUDAS, S/O LATE AROKIASWAMY, UTTARAI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE - 560061.
(DIED ON 6-9-2012) SINCE DEAD BY HIS LRS 1(A). MARY STELLA W/O LATE YESUDAS AGED ABOUT 55 YEARS 1(B). STALVIN S/O LATE YESUDAS AGED ABOUT 31 YEARS 1(C). ALVIN S/O LATE YESUDAS AGED ABOUT 29 YEARS, ALL ARE RESIDING AT :
NO:65, SONNENAHALLI, VISHVESHWARAIAH 3RD BLOCK, SOLLAPURADAMMA TEMPLE STREET, BANGALORE-56. ... APPELLANTS (BY SRI NATARAJ .G, ADVOCATE) AND 1. BORAIAH S/O SIDDEGOWDA, DEAD BY LRS.
1(a) K.P. PUTTASIDDAIAH, S/O BORAIAH AGED ABOUT 57 YEARS, R/AT NO: 28, 5TH CROSS, DWARAKANAGAR, 100 FEET ROAD, BSK III STAGE, BANGALORE – 560070.
1(b) HONNAMMA W/O BORAIAH AGED ABOUT 79 YEARS, R/AT BADEKATTE VILLAGE, UTTARAHALLI HOBLI-560061 BANGALORE SOUTH TALUK.
2. A. THOMAS S/O LATE AROKIASWAMY AGED ABOUT YEARS 3. A. PHILOMINDAS S/O LATE AROKIASWAMY AGED ABOUT YEARS, RESPONDENTS NOs. 2 & 3 ARE RESIDING AT No.162, UTTARI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE - 560061. ... RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGEMENT AND DECREE DATED 25.03.2010 PASSED IN R.A.No.70/2007 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-IV, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.03.2007 PASSED IN O.S.No.256/1999 ON THE FILE OF ADDITIONAL II CIVIL JUDGE (JR.DN.), BANGALORE RURAL DISTRICT, BANGALORE.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal is filed by the legal representatives of defendant No.1 in O.S. No.256/1999. Admittedly, the said suit was filed by one Boraiah, son of Siddegowda, for the relief of permanent injunction with reference to the enjoyment of the property i.e., agricultural land measuring to an extent of 04 Acres in Sy. No.113/23 situate at Uttari village, Uttarahalli hobli, Bangalore South Taluk.
2. Admittedly, Sri Boraiah, the husband of respondent No.1(b) and the father of respondent No.1(a), filed the suit against Sri A.Yesudas, the husband of appellant No.1(a) and the father of appellant Nos.1(b) and 1(c) herein. The said suit of the plaintiff came to be dismissed by the Court of Additional II Civil Judge (Jr. Dn.), Bangalore Rural District, Bangalore, by its judgment and decree dated 30.03.2007.
The said judgment was the subject matter of challenge in Regular Appeal No.70/2007 preferred by respondent Nos.1(a) and 1(b), the legal representatives of Boraiah, before the Fast Track Court – IV, Bangalore Rural District, Bangalore. The said appeal came to be allowed by the lower appellate Court by its judgment dated 25.03.2010. Subsequently, A. Yesudas died on 06.09.2012.
3. Admittedly, as on the date (25.03.2010) when the appeal in R.A. No.70/2007 was allowed by the lower appellate Court, A. Yesudas (defendant No.1 in the suit and respondent No.1 in R.A. No.70/2007) was alive and neither he nor his two brothers (defendant Nos.2 and 3 in the suit) filed any appeal against the divergent finding rendered by the lower appellate Court in R.A. No.70/2007. It may be noted that Mrs. K. Arokia Mary, the mother of A. Yesudas, who was arrayed as defendant No.4 in the suit, died during the pendency of the suit and hence, her name was deleted in the proceedings before the trial Court.
4. It is seen that nearly after expiry of two years three months from the date of death of A. Yesudas, defendant No.1 in the suit, this second appeal is filed by his legal representatives on the premise that the right to challenge the judgment rendered by the lower appellate Court in R.A. No.70/2007 would accrue to all of them. However, the appellants while filing the present appeal, did not seek leave of this Court to prefer the appeal in the name of A. Yesudas, the husband of appellant No.1(a) and the father of appellant Nos.1(b) and 1(c), instead they have filed three applications:
I.A. No.2/2017 seeking to condone the delay of 52 days in filing the application for setting aside abatement; I.A. No.3/2017 seeking to set aside the abatement caused due to the death of A. Yesudas and I.A. No.1/2017 seeking permission to bring on record the appellants herein on behalf of deceased A. Yesudas. It is apparent that appellants herein have not followed the correct procedure while preferring this appeal.
5. Keeping in view the aforesaid aspect, when the present appeal is looked into, it is seen that the same is filed with an inordinate delay of 1632 days, which in other words, is 4½ years. Hence, to seek condonation of the said delay, application in I.A. No.1/2014 is filed by the legal representatives of deceased A. Yesudas. The said application is taken up for consideration today to ascertain as to whether notice is required to be issued on the said application.
6. Heard the learned counsel for appellants. Perused the affidavit filed by appellant No.1(b) on his behalf and on behalf of appellant Nos.1(a) and 1(c) in support of I.A. No.1/2014. It is stated by appellant No.1(b) in his affidavit that his father, A. Yesudas, during his life time was attending to the case before the Courts below, however, after his retirement from his work in the year 2010, he was not keeping well and was taking treatment in the BGS hospital. Appellant No.1(b) has further stated that during the month of June 2014, when he visited his property, he found that his opponents were trying to put up construction on his property on the strength of the judgment passed by the lower appellate Court. Thereafter, the deponent is said to have contacted his Advocate and secured the certified copies of orders and filed the present appeal.
7. The material on record discloses that appellant Nos.1(a) to 1(c) have taken about four and half years from the date of the judgment (25.03.2010) passed by the lower appellate Court and about two years three months from the date of death (06.09.2012) of A. Yesudas, the husband of appellant No.1(a) and the father of appellant Nos.1(b) and 1(c)), to file the present appeal challenging the judgment passed by the lower appellate Court in R.A. No.70/2007. The explanation offered by the appellants for the said inordinate delay is that they were grieving the death of A. Yesudas, the husband of appellant No.1(a) and the father of appellant Nos.1(b) and 1(c), and could not take decision to file the appeal at the earliest point of time.
8. However, when the entire records are looked into, as stated supra, the appeal in R.A. No.70/2007 was dismissed by the lower appellate Court prior to the death of A. Yesudas, who during his life time did not choose to file any appeal against the said judgment. Similarly, his brothers (defendant Nos.2 and 3 in the suit) also accepted the said judgment of the lower appellate Court. It is only after the expiry of two years three months from the date of death of A. Yesudas, appellants have come up in this appeal contending that they have valid right to pursue this matter, which fact does not make any sense as no ground is made out to issue notice to the respondents on I.A. No.1/2014. In the absence of sufficient cause shown by the appellants, the inordinate delay of 1632 days in filing this appeal cannot be condoned. Accordingly, application in I.A. No.1/2014 is dismissed. Consequently, this second appeal is dismissed.
9. In view of dismissal of this appeal, the other applications in I.A. Nos.1 to 3 of 2017, which are filed by the legal representatives of deceased A. Yesudas, do not merit consideration and the same stand disposed of.
Sd/- JUDGE Sma