IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO. 1649/2015 BETWEEN 1. SRI HONNEGOWDA MAJOR, S/O. KANNEGOWDA @ DODDAHYDEGOWDA, 2. SRI. SANNEGOWDA MAJOR, S/O KANNEGOWDA @ DODDAHYDEGOWDA, 3. GUNDEGOWDA MAJOR, S/O KANNEGOWDA @ DODDAHYDEGOWDA ALL ARE R/AT ALAGUDU VILLAGE, ARAKERE VILLAGE AND HOBLI, SRIRANGAPATNA TALUK 571438.
(BY SRI DESHRAJ, ADV.) AND 1. SRI SIDDEGOWDA MAJOR, S/O SIDDEGOWDA @ DODDAHYDEGOWDA, R/AT ALAGUDU VILLAGE, ... APPELLANTS ARAKERE VILLAGE AND HOBLI, SRIRANGAPATNA TALUK 571 438.
2. THE SECRETARY REP. BY TADAGAVADI GRAMA PANCHAYATH, SRIRANGAPATNA TALUK 571 438.
********** ... RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 15.12.2012 PASSED IN RA NO.64/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 30.08.2010 PASSED IN OS NO.77/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) AND JMFC, SRIRANGAPATNA.
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 by defendants 2 to 5 in O.S.No. 77/1997 on the file of the Civil Judge (Jr. Dn.) and JMFC, Srirangapatna.
2. Admittedly, the suit in the Court below was filed by respondent No.1 herein seeking declaration and permanent injunction with reference to suit property which is a vacant site and remaining land in Sy.No.13/A measuring to an extent of 2¾ guntas in Alagud Village, Srirangapatna Taluk, Tadagavadi Grama Panchayath. It is seen that the said suit of the plaintiff is decreed by judgment and decree dated 30.08.2010 which was taken up in appeal before the lower appellate Court immediately thereafter by filing an appeal on 28.10.2010. The said appeal came to be dismissed by judgment and decree dated 15.12.2012. As against the concurrent findings of both the Courts below, the present appeal is filed with inordinate delay of 923 days. Hence, application in I.A.1/2017 is filed seeking condonation of delay.
3. Admittedly, the present appeal is filed on 06.10.2015. The records would indicate that certified copy of the judgment is applied in regular appeal on 27.12.2012 itself, i.e., within 12 days from the date of concurrent finding rendered by the lower appellate court. Thereafter, certified copy is received on 04.01.2013. Inspite of that the appeal is not filed till October, 2015. Even while filing the appeal, the same is filed without seeking condonation of delay. Once the office raised objection with reference to the same, application is filed seeking condonation of delay of 923 days. The same has come up before this Court for consideration.
4. Before considering this application for issuance of notice, this Court looked into the entire records. On going through the same, it is seen that the plaintiff in original suit who is the purchaser of suit schedule property from one Konegowda, husband of defendant No.1 and father of defendants 2 to 4 had filed suit for injunction to desist the claim of defendants 1 to 4 to the properties which he had purchased under a registered sale deed vide Ex.P.1 in the Court below. It is seen that the suit is filed by the plaintiff after the death of his vendor. The same was contested by the defendants, i.e., widow and children of plaintiff’s vendor. The suit was decided on merits by judgment and decree dated 30.08.2010. It is seen that defendants who lost their defence in the said suit immediately preferred an appeal in R.A.No.64/2010 on the file of the Senior Civil Judge, Srirangapatna by filing the appeal on 28.10.2010, i.e., within two months from the date of judgment in original suit, which was also decided on merits by judgment dated 15.12.2012 in dismissing their appeal.
5. It is clearly seen that there is concurrent findings of both the Courts on fact that the plaintiff has established his title to suit property which was accepted by the defendants in the original suit for nearly 923 days. It is thereafter this appeal is filed with inordinate delay of 923 days impugning the concurrent findings of both the Courts blow. When the application which is filed seeking condonation of delay is looked into, paragraph 8 of the affidavit filed seeking condonation of delay deals with the reasons for delay. The reason assigned by the appellant seeking condonation of delay is that they are villagers; they are illiterates; they are not conversant with the judicial proceedings; they would also state that they could not contact their lawyer for long time. However, suddenly one day they woke up to the fact that the appeal filed by them is required to be enquired into.
6. It is at this stage when they enquired with their counsel they came to know that their appeal is dismissed. This is something which this Court cannot believe. When the certified copies which are filed in appeal are looked into, it would clearly show that the counsel for appellants in the court below has promptly applied for certified copy within 12 days of the judgment in regular appeal and he has collected the same. There is nothing on record which shows that there is any mistake on his part in doing his job.
7. It is defendants in the Court below who having lost the litigation in both the courts accepted the same and thereafter for the reasons best known to them they have come up in this second appeal trying to convince this Court that the inordinate delay is attributable to illiteracy and ignorance, which cannot be accepted in the facts situation.
8. Therefore, this Court is of the considered opinion that the grounds urged seeking condonation of delay has no substance in it and it is created only with an intention of challenging this appeal on merit. It is a chance, which they are trying to take in filing this appeal belatedly for which this Court does not have time.
9. Therefore, application in I.A.1/2017 which is filed seeking condonation of delay of 923 days does not merit consideration. Accordingly, the same is dismissed. Consequently, the appeal is also dismissed.
Sd/- JUDGE VP