IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO REGULAR SECOND APPEAL No.502/2014 BETWEEN:
SMT. NAGARATHNA W/O. LATE D.N. PRASAD AGED ABOUT 38 YEARS REP. BY HER GPA HOLDER MR. B.S.SRINIVASA S/O B.S.SATYANARAYANA SHARMA AGED ABOUT 40 YEARS BOTH R/AT ANDHARLAHALLI VILLAGE NANDI HOBLI CHICKABALLAPURA TALUK – 562 101 ..APPELLANT (BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. SMT D.N.SARASWATHI W/O. A.S. RAJASHEKAR D/O. NARAYANAMURTHY MAJOR R/AT VIDYARANYAPURA B.E.L. LAYOUT 6TH BLOCK, SHAKTI GANAPATHI TEMPLE POLICE STATION COMPOUND VIDYARANYAPURA BANGALORE – 560 097 2. SMT D.N. PADMA W/O. SATHYANARAYANA IYYER MAJOR R/AT 3RD BLOCK THYAGARAJ NAGAR BANGALORE – 560 008 ..RESPONDENTS (BY SRI C.R. SUBRAMANYA, ADVOCATE FOR R1; R2-SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:26.10.2013 PASSED IN U.R.A.NO.7/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., SIDLAGHATTA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 22.06.2010 PASSED IN O.S.NO.129/1998 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) & JMFC., SIDLAGHATTA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the order dated 26.10.2013 in URA No.7/2010 passed by Senior Civil Judge and JMFC, Sidlaghatta, wherein the Judgment and decree passed in O.S.No.129/98 dated 22.06.2010 came to be confirmed by virtue of dismissal of the said appeal.
2. Before adverting to the regular aspects involved in the appeal, at request of learned counsel and as felt fair by this court, the nature of order passed by learned Judge warrants consideration on the aspect of limitation. Learned counsel for appellant would submit that the suit of the plaintiff in O.S.No.129/98 came to be decreed and plaintiff was declared entitled for 1/3rd share in the suit schedule properties as such preliminary decree was granted. Further directing that if 2nd defendant failed to allot the share, plaintiff to initiate final decree proceedings as per Section 54 of Code of Civil Procedure.
3. Defendant No.2 being aggrieved by the judgment and decree passed in O.S.No.129/1998, preferred Regular Appeal before the learned Senior Civil Judge and JMFC., Chintamani URA No.7/2010. There was a delay of 32 days in presenting the appeal.
4. The learned Senior Civil Judge has passed the order of dismissal by dismissing I.A.No.2 under Section 5 of the Limitation Act by holding that there were no grounds to allow the application and consequently dismissed the appeal.
5. The learned counsel for appellant submits that no opportunity was given to the appellant to establish the case of the appellant. He further submits that the First Appellate Court even mistook regarding the case and facts.
6. On perusal of the order passed by the learned Senior Civil Judge, it is reflected from the copy of the order sheet that URA No.7/2010 was filed on 26.08.2010 under Order 41 Rule 1 and 2 r/w Section 96 of the Code of Civil Procedure challenging the judgment and decree passed in O.S.No.129/1998 on 22.06.2010.
7. I.A.No.2 filed by the defendant no.2 states the delay of 32 days in presenting the appeal. The reason stated is that appellant’s brother had met with an accident and the appellant also sustained injuries in a fire accident and one B.S.Srinivas was examined as DW.1 on 10.08.2002.
8. The order of dismissal of application by the learned First Appellate Judge is neither just, nor reasonable. Learned appellate Judge started with the discussion that the impugned judgment is of O.S.No.43/2006 wherein the suit of the plaintiff for declaration and injunction is dismissed and said judgment was passed on 01.08.2009; the certified copy of the judgment was obtained on 31.05.2010 and the appeal was preferred on 01.06.2010; the appellants have not stated the length of delay in preferring the appeal.
9. The learned Civil Judge has also discussed regarding granting of several opportunities to the appellants and finally dismissed the application and consequently dismissed the appeal.
10. Insofar as the present appeal is concerned, it is against the judgment and decree passed in O.S.No.129/1998 on 22.06.2010. The suit was for partition and separate possession.
11. The length of delay stated is 32 days. The impugned order is written in a most negligent manner and lacks application of mind. Let alone, the judicial order as to dismissing the application, facts of totally a different case are considered and result of those discussion is considered as the reason for the appeal. In other words, the learned First Appellate Judge has considered the facts in O.S.No.43/2006 dated 01.08.2009 on the file of Civil Judge, Sidlaghatta for adjudicating the appeal filed against the Judgment and decree passed in O.S.No.129/1998 dated 22.06.2010, which is neither appreciable nor justifiable.
12. In substance and on examination, the order is perverse, hasty and passed in a most irresponsible way, besides does not comply the principles of natural justice and good conscious. These kinds of orders are liable to be set aside.
13. The very question of law would be whether the courts can apply the facts of a case to another, and totally different case? The answer is not only ‘NO’ but also such tendency is bad for the system. However, it is a case for remand.
14. Accordingly, the appeal is allowed. The delay of 32 days in preferring URA No.7/2010 is condoned. Without expressing any opinion on merits of the case, the impugned order dated 26.10.2013 passed by the Senior Civil Judge and J.M.F.C., Sidlaghatta, in URA No.7/2010 is set aside.
15. The matter is remanded to the First Appellate Court for fresh adjudication. Considering the age and stage of the case, the learned Judge of the first appellate Court shall make an endeavour to dispose of the appeal, as expeditiously as possible, at any rate within an outer limit of six months from the date of first hearing after receipt of the records.
16. In view of the disposal of the main appeal, pending interlocutory application shall stand disposed of.
17. Registry is directed to transmit the records to the First Appellate Court, forthwith.
18. Registry is directed to send a copy of this judgment to the Judicial Officer who has passed the impugned order, wherever he is working and also place a copy of the judgment before the learned Administrative Judge for consideration.
Sd/- JUDGE SBN/Np/-