IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA REGULAR SECOND APPEAL NO.359/2016 BETWEEN:
P. M. VENKATAPATHAPPA, SON OF LATE JAMEDAR, MUNISWAMAPPA, AGED ABOUT 75 YEARS R/AT PETECHAMANAHALLI, KASABA HOBLI, KOLAR TALUK-563101.
(BY SRI SHRINIWAS M. KULKARNI, ADVOCATE) AND:
1. M. MUNIKRISHNAPPA, SON OF CHIKKAMUNIVENKATAPPA @ BIDDAPPA AGED ABOUT 64 YEARS R/A P.C.EXTENSION, KOLAR-563101.
2. M. NARAYANASWAMY SON OF LATE JAMEDAR MUNISWAMAPPA AGED ABOUT 80 YEARS N.R.EXTENSION, KOLAR-563101.
... APPELLANT 3. N. KRISHNAPPA @ KITTAPPA SON OF LATE CHIKKA NAGAPPA, AGED ABOUT 62 YEARS, R/AT PETECHAMANAHALLI VILLAGE, KASABA HOBLI KOLAR TALUK-563101. .. RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 CPC, AGAINST THE JUDGMENT AND DECREE DATED 8.2.2010 PASSED IN R.A.NO.71/2008 ON THE FILE OF PRL. DISTRICT JUDGE, KOLAR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.06.2008 PASSED IN O.S.NO.11/2001 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.), KOLAR THIS REGULAR SECOND APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T The 2nd defendant in O.S. No.11/2001 on the file of the I Addl. Civil Judge (Sr.Dn.), Kolar has come up in this appeal impugning the concurrent findings of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration with reference to the joint rights and title to the suit property and also for Permanent Injunction with reference to the said property.
2. This appeal is filed with the delay of 2211 days.
Hence application in I.A. No.1/2017 is filed seeking condonation of the same. The said application is taken up for consideration this day.
3. Heard the learned counsel for the appellant – 1st defendant to consider whether the grounds made out in the application deserves issuance of notice to the respondents on the said application for the reason that the inordinate delay in filing the appeal is to the tune of 2211 days i.e., six years 21 days. He would submit that the 1st defendant in the Court below suffered heart problem subsequent to the judgment and decree passed by the lower appellate Court in R.A. No.71/2008 and that is the reason which prevented the 1st defendant from filing this appeal challenging the concurrent findings of both the Courts below. However when the documents available on record filed in support of I.A. No.1/2017 are looked into, it would indicate that the appellant has suffered certain problems in connection with his heart, for which he was hospitalized for some time and he has undergone treatment in that behalf. The documents which are produced in that regard would only support his contention that he was suffering from heart problem from December-2014. However the Judgment which is impugned i.e., the judgment & Decree in R.A. No.71/2008 is dated 8.2.2010. So far as the delay which is there between February-2010 to December-2014, which is to the tune of nearly 4 years 10 months is concerned, there is absolutely no satisfactory explanation. In this background, this Court would observe that an unfortunate incident with reference to the health of appellant is tried to be taken as advantage to seek condonation of inordinate delay of 2211 days in filing this appeal.
4. Before considering this application, this Court also looked into the judgments of both the Courts below to ensure whether serious injustice would be caused to the appellant if the application for condonation of delay is not considered by issuing notice. When Judgments of both the Courts below are looked into, the prayer of the plaintiff in the Original Suit is with reference to declaration of his right to perform pooja in the family cemetery where the ancestors of both the plaintiff and defendants are buried and also with reference to a Mutt which is constructed in that place, which is to be looked after by all the members of the family as per the will of the ancestors of the plaintiff and the defendants in the court below. It is in this background, the suit in O.S. No.11/2001 is considered by the trial Court by its judgment & Decree dated 21.6.2008, wherein partial relief was granted to the plaintiff. It is seen that the plaintiff in the original suit accepted the same. However the 1st and the 2nd defendants in the suit were not happy with the judgment. They preferred appeal in R.A. No.71/2008, where the 3rd defendant in the original suit raised cross-objection so far as it relates to non-
consideration of some of the reliefs sought by the plaintiff in the original suit. The lower appellate Court by its judgment dated 8.2.2010 dismissed the appeal filed by the 1st and 2nd defendants in the original suit. While doing so, the cross-objection filed by the 3rd defendant is entertained. Consequently the suit of the plaintiff in the Court below is decreed in its entirety. When the same is looked into, it is seen the prayer in the original suit is rightly decided by both the courts below. In that view of the matter, even if notice is issued on I.A. No.1/2017 to consider condonation of inordinate delay of 2211 days, no purpose would be served inasmuch as when the appeal is taken up for consideration, no grounds are made out to admit the appeal. Therefore in order to avoid further waste of time, the application in I.A. No.1/2017 is rejected. Consequently, appeal stands dismissed.
Sd/-
Gss/- JUDGE