IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2072/2013 BETWEEN:
1.SMT.NARASAMMA AGED ABOUT 75 YEARS, W/O LATE DODDAPUTTANNA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 2.SMT LAKSHMAMMA AGED ABOUT 49 YEARS, W/O LATE JAGADEESH, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 3.MASTER VIVEK AGED ABOUT 17 YEARS, S/O LATE JAGADEESH, SINCE MINOR REPRESENTED BY THEIR NATURAL GUARDIAN AND MOTHER SMT LAKSHMAMMA, APPELLANT NO.2 R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 4.SMT LAVANYA AGED ABOUT 14 YEARS, D/O LATE JAGADEESH, SINCE MINOR REPRESENTED BY THEIR NATURAL GUARDIAN AND MOTHER SMT LAKSHMAMMA, APPELLANT NO.2 R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 5.SRI PRAKASH MURTHY AGED ABOUT 37 YEARS, S/O LATE DODDAPUTTAPPA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 6.SMT SHASHIKALA AGED ABOUT 29 YEARS, D/O LATE DODDAPUTTAPPA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 ..APPELLANTS (BY SRI MURALI B S., ADVOCATE) AND:
1.SRI.NAGARAJU AGED ABOUT 34 YEARS, S/ CHIKKAPUTTAPPA @ PUTTAPPA, R/AT MARASANDRA VILLAGE, HESARAGHATTA HOBLI BANGALORE NORTH TALUK, BANGALORE URBAN DISTRICT-560 088 2.SRI VISHWAS GOWDA AGED ABOUT 11 YEARS, SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN SMT PADMA @ PADMAVATHI W/O KUBERA AGED ABOUT 35 YEARS, R/AT DODDATUMAKURU, MADHURE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 3.SRI CHIKKAPUTTAPPA AGED ABOUT 76 YEARS, S/O LATE KEMPANNA, SINCE DEAD BY LRS R-4, 6 TO 12 4.SMT HANUMAKKA AGED ABOUT 71 YEARS, W/O CHIKKAPUTTAPPA R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 5.SRI MANJUNATH AGED ABOUT 26 YEARS, S/O LATE RAMANJANAPPA, R/AT LAKSHMIDEVIPURA, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561 203 6.SRI SUBRAMANI AGED ABOUT 49 YEARS, S/O CHIKKAPUTTAPPA, R/AT SHETTYGOVINDA DODDIHALLI, BIDADI HOBLI, RAMANAGAR TALUK & DISTRICT-562109 7.SRI RAMAKRISHNAIAH AGED ABOUT 46 YEARS, S/O CHIKKAPUTTAPPA, R/AT VETERINARY HOSPITAL, RAJGHATTAHALLI, KASABA HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 8.SRI ANANDMURTHY AGED ABOUT 42 YEARS, S/O CHIKKAPUTTAPPA, R/AT LAST HOUSE IN VI CROSS, SHANTHINAGAR, MUTHYALAMMA ROAD, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 9.SRI VIJAYAKUMAR AGED ABOUT 39 YEARS, S/O CHIKKAPUTTAPPA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 10.SRI KUBERA AGED ABOUT 36 YEARS, S/O CHIKKAPUTTAPPA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 11.SRI KEMPEGOWDA AGED ABOUT 32 YEARS, S/O CHIKKAPUTTAPPA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 12.SRI MUNEGOWDA AGED ABOUT 29 YEARS, S/O CHIKKAPUTTAPPA, R/AT GANDARAJAPURA VILLAGE, TUBUGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561203 ..RESPONDENTS (BY SMT VIJAYA M N., ADVOCATE FOR R1 & R2, SRI D N ARUN KUMAR, ADVOCATE FOR R-4 TO 6 & R-8 TO 12, R-4, 6, 7 TO 12 –TREATED AS LEGAL REPRESENTATIVES OF R3 VIDE ORDER DATED 16.06.2016) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED:06.11.2013 PASSED ON I.A.NO.1 IN R.A.NO.348/2012 ON THE FILE OF THE IV ADDITIONAL DISTRICT & SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED:23.05.2012 PASSED IN O.S.NO.19/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., DODDABALLAPUR.
THIS RSA COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the Judgment and decree passed by the learned IV Additional District and Sessions Judge, Doddaballapur, Bangalore Rural District wherein legal representatives of Doddaputtanna, defendant No.11 preferred regular appeal No.348/2012 and the same was dismissed on 06.11.2013 as barred by limitation. There was a delay of 48 days in filing the appeal against the Judgment and decree dated 23.05.2012 passed in O.S.19/2007. Application in the form of I.A.No.1 filed under Section 5 of the Limitation Act seeking condonation of delay of 48 days was rejected and consequently appeal came to be dismissed.
2. O.S.No.19/2007 came to be filed by one Nagaraju and Viswasgowda for partition claiming to be members of Hindu Joint family. Defendants appeared and filed their written statement denying the averments made in the plaint. Learned Senior Civil Judge and JMFC, Doddaballapur, after considering the oral and documentary evidence and materials available on record adjudicated the matter and suit filed by the plaintiff came to be partly decreed. Aggrieved by the Judgment and decree dated 23.05.2012 legal representatives of defendant No.11 preferred R.A.No.348/2012 which came to be dismissed. Against the said order present appeal is filed by the legal representatives of defendant No.11.
3. This court framed the following substantial question of law on 02.09.2014 as under:
“Whether the First Appellate Court was justified in dismissing the appeal of the appellants herein by rejecting the application to condone the delay of 48 days and in doing so, did not have liberal approach to the cause shown to do substantial justice and thereby committed an error in rejecting the application for condonation of delay?”
4. Learned counsel for appellants would submit that the learned first appellate Judge rejected the application filed under Section 5 of the Limitation Act and it is against natural justice. The appellate Judge should have considered the plight of appellants and the case on merits.
5. Learned counsel for respondents submit there are no merits and seeks for dismissal of the appeal.
6. It is necessary to make a mention of the existence of regular appeal No.334/2012 that was filed by the plaintiff against same Judgment and decree passed in O.S.No.19/2007. It is also necessary to repeat plaintiff-Nagaraju and defendant No.11-Doddaputtanna preferred appeals against Judgment and decree passed in O.S.No.19/2007 dated 23.05.2012.
7. The appeal preferred by plaintiff-Nagaraju was numbered as R.A.No.334/2012 filed on 04.08.2012 and the appeal preferred by Doddaputtanna was numbered as R.A.No.348/2012 filed on 18.08.2012. Thus, it was basic application that the matter requires to be clubbed for common disposal to prevent conflict, overlapping and controversy. But learned first appellate Judge for the discretion known to him chose to dispose of the subsequent appeal No.348/2012 separately that to on the point of limitation. It was submitted by learned counsel for appellants and respondents in this appeal that R.A.No.334/2012 preferred by the plaintiff is still pending before the first appellate court. This leads to a confused state in the proceeding. Now insofar as the present appeal is concerned i.e., against the Judgment and decree dated 06.11.2013 passed in R.A.No.348/2012, disposal of the appeal by learned Judge is not on merits but as a consequence of dismissal of I.A.No.1 filed under Section 5 of the Limitation Act. Appellants herein incidentally who are also appellants before the first appellate court in R.A.No.348/2012 pleaded that their father defendant No.11-Doddaputtanna died on 20.05.2012 and consequently the appellants and his family members were under deep pressure and stress and unable to meet their counsel regarding proceedings and steps to be taken. This was not accepted by the first appellate court.
8. In the circumstances and facts of the case the learned Judge erred in dismissing the application filed under Section 5 of the Limitation Act. More over disposed of the R.A.No.348/2012 alone by keeping R.A.No.334/2012 pending though both were materially connected to each other which is neither just nor proper. On both the counts the Judgment and decree dated 06.11.2013 passed in R.A.No.348/2012 is liable to be set aside.
For the reasons stated above, appeal is allowed and remanded to the first appellate court for fresh disposal.
Learned first appellate Judge shall dispose of both the appeals R.A.No.334/2012 and R.A.No.348/2012 together on merits and considering the facts that the order passed on I.A.No.1 in R.A.No.348/2012 is set aside and consequently the said I.A.No.1 is allowed and matter is remanded to the first appellate court for fresh disposal.
In order to save judicial time the appellants and respondents are hereby directed to appear before the first appellate court on 18.03.2019 and it is clarified that no further notice will be issued.
First appellate court shall post R.A.No.334/2012 and R.A.No.348/2012 to a common date and dispose of both the regular appeals in common on or before 31.12.2019 without fail.
Records to be sent back to the first appellate court.
Sd/- JUDGE SBN