IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1125/2010 BETWEEN:
1.H YOGENDRAPPA AGED ABOUT 58 YEARS, S/O HALAPPA, AGRICULTURIST, R/O KANDAGAL VILLAGE, DAVANAGERE TALUK – 577 001.
2.A RAJASHEKARAPPA AGED ABOUT 61 YEARS, S/O A RANGAPPA AGRICULTURIST, R/O KUNDAVADA VILLAGE DAVANAGERE – 577 001.
..APPELLANTS (BY SRI M V REVANASIDDAIAH, ADVOCATE) AND:
1.D GURURAJ S/O CHANNAMALLAPPA MAJOR, HINDU 2.D J SUVARNAMMA W/O JAGADANANDAPPA MAJOR, HINDU, BOTH ARE PARTNERS SRI VEERESHWARA TRADERS COTTON TRADERS, HARAPANAHALLI ROAD, KOTTUR TOWN, BELLARY DISTRICT – 583 134.
3.D VIVEKANANDA S/O CHANNAMALLAPPA MAJOR, HINDU 4.D B CHANNABASAVANNA S/O BAKKAPPA, MAJOR RESPONDENTS No.3 & 4 ARE PARTNERS OF SRI VIVEKANANDA COTTON TRADERS, COTTON MERCHANTS, HARAPANAHALLI ROAD, KOTTUR TOWN, BELLARY DISTRICT – 587 134.
5.A B RAHIM S/O AIRANI BABUJAN MAJOR, R/O D No.167/2, K R ROAD, DAVANAGERE CITY – 577 001.
6.B NAGENDRA S/O LATE B R BASAPPA MAJOR R/O D.No.662/6, B H SIDDALINGAPPA CROSS, HONDADA ROAD, DAVANAGERE CITY – 577 001.
7.D SHIVAKUMAR S/O D JAYANNA MAJOR R/O D.No.2976 6TH MAIN, MCC ‘ B’ BLOCK DAVANAGERE CITY – 577 001.
8.DASARI VENKATARAMAMMA W/O DASARI VENKATA RAO MAJOR, R/O NITTUR VILLAGE HARIHAR TALUK – 577 601.
9.R SYED GOUSE S/O SYED RAJASAB MAJOR 10.SMT. KHURSHID KHANUM W/O SYED GHOUSE, MAJOR RESPONDENTS 9 & 10 ARE PROPRIETORS, A.V.M TEXTILE ASAR MOHALLA CHITRADURGA – 577 501.
11.MOHAMMAD SAMIULLAH S/O T ABDUL RASHEED MAJOR R/O D NO.686/8, 4TH CROSS, BHAGATH SINGH NAGAR, DAVANAGERE CITY – 577 001.
12.SYED SUBHAN S/O SYED KHASIM MAJOR, R/O D NO.633, 8TH CROSS, AZADNAGAR, DAVANAGERE CITY – 577 001.
13.KARIMUNNISA W/O K H ATHAULLAH KHAN MAJOR, R/O D.No.2505 M.C.C, ‘A’ BLOCK, DAVANAGERE CITY – 577 001.
14.JUBEDABI W/O LATE MAJID SAB MAJOR, R/O 1ST CROSS, 3RD WARD, BHASHANAGAR, DAVANAGERE CITY – 577 001.
15.S H ABDUL GAFOOR SAB S/O SHINGRIHALLI BHUTHI HUSAIN SAB MAJOR D.No.9/1, 16TH CROSS, AZAD NAGAR, DAVANAGERE CITY- 577 001.
16.SMT SHAMSHAD BHANU W/O S H ABDUL GAFOOR SAB MAJOR, D.No.9/1, 16TH CROSS, AZAD NAGAR, DAVANAGERE CITY – 577 001.
17.SRI CHANDRASHEKHARAPPA S/O SHIVAPPA UPPINA MAJOR, R/O 6TH CROSS, BHAGATHSINGH NAGAR, DAVANAGERE CITY – 577 001.
18.P R RADHAKRISHNASHETTY S/O P P RAMAKRISHNASHETTY MAJOR, R/O D.No.7-25-3 ASHOK ROAD, DAVANAGERE CITY – 577 001.
19.SRI SHAMSHER BEIG S/O HABIB BEIG MAJOR, R/O BHAR MANJIL D.No.1020/3, 2ND CROSS, K .T .J NAGAR, DAVANAGERE – 577 001.
20.J MAHABOOB ALI S/O B H JANU SAB MAJOR R/O D NO.433, NEW MASJID ROAD, DAVANAGERE CITY-577 001 21.J MOHAMMAD HASAN S/O B H JANU SAB, MAJOR R/O D.No.433, NEW MASJID ROAD, DAVANAGERE CITY – 577 001.
..RESPONDENTS (BY SRI RAJASHEKHAR, FOR R1, R4 & R7 SRI CHIDAMBARA G.S, ADVOCATE FOR R-15 & 16 SRI B K MANJUNATH, ADVOCATE FOR R-17, R-2,3,5,6,9,10,12,13,18,19,20 & 21 ARE SERVED APPEAL AGAINST R-8, 11, 14 IS DISMISSED V/O DATED:05.11.2018) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.11.2009 PASSED IN R.A.NO.191/2004 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED:26.05.2004 PASSED IN O.S.NO.220/2001 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), DAVANAGERE.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeal is listed for admission, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. Appeal is directed against the Judgment and decree dated 07.11.2009 passed in R.A.No.191/2004 by the I Additional District and Sessions Judge, Davanagere, filed against the Judgment and decree dated 26.05.2004 passed in O.S.No.220/2001 by the Principal Civil Judge (Jr.Dn), Davanagere.
3. Heard learned counsel for appellants and respondents.
4. It is a brief matter wherein appellants had preferred regular appeal against the Judgment and decree passed by the learned Principal Civil Judge (Jr.Dn), Davanagere in O.S.220/2001 and appeal came to be dismissed as it was filed after a delay of 28 days. Suit was for permanent injunction from making any earthwork or construction work in `B’ schedule property or from alienating or encumbering the same. The suit was dismissed by Judgment and decree dated 26.05.2004. `B’ Schedule properties are vacant sites situated near by P.B.Road, Davanagere.
5. The point of law in this case would be in respect of granting opportunity and compliance of principles of natural justice. In the context and circumstances, the learned appellate Judge should have adhered to granting opportunity by following principles of natural justice. It is not done. Appeal is filed on 16.08.2004 and came to be dismissed on 07.11.2009 by dismissing application seeking condonation of delay of 28 days. In case it was supposed to be dismissed there was no necessity for maintaining the file for five years. It is expected that whenever the matter has to stand or fall on the basis of applications, such applications are to be adjudicated at the earliest opportunity. Without adhering the above, learned I Additional District and Sessions Judge has erred seriously in dismissing the regular appeal.
6. Meanwhile learned counsel Sri M.V.Revanasiddaiah submits that there was another suit in O.S.No.345/98 filed along with present one that was also dismissed by the appellate court. In this connection RSA No.1126/2010 came to be allowed and matter was remitted.
7. It is just and proper to allow the appeal and remand the matter to the first appellate court.
Hence, appeal is allowed. Application seeking condonation of delay of 28 days filed in R.A.No.191/2004 is allowed. Matter is remitted to the first appellate court to dispose of the appeal on merits.
In the circumstances in order to save wastage of judicial time parties shall not wait for separate notice. They shall appear before the I Additional District and Sessions Judge, Davanagere in R.A.No.191/2004 on 11.06.2019 without waiting for further notice and on such appearance the matter shall be considered by the appellate court and shall dispose the same as expeditiously as possible however within an outer limit of four months from the date of first hearing date.
Sd/- JUDGE SBN