IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR M.F.A. NO.1524 OF 2016 (CPC) BETWEEN:
Sri. Krishnappa, S/o. late Appaiah, Aged about 69 years, R/at Bodenahalli, Bodagurki Post, Kamasamudram Hobli, Bangarpet Taluk – 563 123. …Appellant (By Sri. Maruthi G, Advocate for Sri. J.G. Chandra Mohan, Advocate) AND:
Sri. Subbarayappa, Dead by LRS, (1) & (2) only 1. Kum. Muniyamma, D/o. late Subbarayappa, Aged about 51 years, 2. Sri. Narayanaswamy, S/o. late Subbarayappa, Aged about 46 years, Respondents (1) and (2) are residing at C/o. Sri. Munivenkatappa, S/o. Nanjappa, Bodenahalli, Bodagurki Post, Kamasamudram Hobli, Bangarpet Taluk – 563 123.
3. Sri. Munivenkatappa, S/o. Nanjappa, Aged about 51 years, Residing at Bodenahalli, Bodagurki Post, Kamasamudram Hobli, Bangarpet Taluk – 563 123.
4. Sri. Ramappa, S/o. Narayanappa, Aged about 51 years, (deceased) ...Respondents (Vide order dated 12.02.2019, service of notice to R1 and R2 is held sufficient;
R3 is served and unrepresented;
R4 deleted vide order dated 17.01.2019) *** This Miscellaneous First Appeal is filed under Order 43 Rule 1 (t) of Code of Civil Procedure, 1908, against the order dated 28.01.2016 passed in Mis.No.01/2010 on the file of the Senior Civil Judge and Principal JMFC, K.G.F., dismissing the petition filed under Order XLI Rule 9 of CPC.
This appeal coming on for Admission this day, the Court, delivered the following:
JUDGMENT This appeal is filed by one Krishnappa, who had filed a suit bearing O.S.No.155/1996, which came to be dismissed vide order dated 03.08.2002 by the Addl. Civil Judge, KGF. Aggrieved by the same, the appellant preferred R.A.No.197/2002 against the judgment and decree dated 03.08.2002 and the matter was posted for arguments on 21.12.2009. The appellant herein did not address arguments. Hence, Court dismissed the appeal. In fact, it was the case of the appellant that due to absence of his advocate he could not address arguments.
2. It is the case of the respondent that another suit was filed bearing O.S.No.153/1996 for recovery of possession against the appellant herein. The said suit came to be decreed in favour of the respondent Sri.Subbarayappa, who is deceased. One Sri.Naryanappa challenged the Judgment and decree in R.A.No.204/2002. On the said date of dismissal of the appeal, it is contended that the advocate representing the appellant was present before the Court. Despite being present before the Court, he has not filed any application seeking permission for presenting arguments on the very same day. The appellant denies the fact that the respondent-Subbarayappa has recovered the possession in Execution proceedings and sold suit schedule property to one Babu on 29.12.2014. Pursuant to the dismissal of RA No.204/2002, the matter was taken up in second appeal in RSA No.1715/2010, which again came to be dismissed on 04.12.2012. Main ground of appeal by the appellant in this appeal is that he was not given an opportunity to address the arguments as counsel was not present in the Court due to the fact that he was engaged in another Court.
3. It is noted that the appellant in his cross- examination has clearly deposed that as on the date of dismissal of RA No.197/2002 he and his counsel were present in the Court and did not file any application seeking permission to address the arguments, after the dismissal of the appeal. The learned trial Judge has noted this fact and came to a conclusion that the evidence of the appellant disproves the reason assigned by the appellant in restoration of his petition on the ground that he was not present before the Court.
4. The learned counsel for the appellant after arguing the matter for sometime submits that the suit for specific performance was filed by him and no opportunity was given to him to address his arguments, thereby depriving his rights to stake claim for restoration of the appeal.
5. On careful consideration of the material on record and the submissions placed by the learned counsel for the appellant, it is clearly apparent on the face of the record that the suit filed by the appellant is of the year 1996, which came to be decreed on 03.08.2002 and it is also noticed that the appeal which the appellant had filed for restoration came to be dismissed on 21.12.2009.
6. At this stage, the learned counsel for the appellant furnished the judgment and decree passed in O.S.Nos.153/1996 and 155/1996. On perusal of the same, it is noticed that the suit bearing No.153/1996 was filed by one Subbarayappa against Krishnappa and another. The suit bearing O.S.No.155/1996 is filed by Krishnappa against Subbarayappa and two others. On perusal of the judgment and decree it is noticed that a common judgment is passed in both the matters and the suit bearing O.S.No.153/1996 filed for declaration of title and recovery of possession was decreed by the Court below and the suit bearing O.S.No.155/1996 was dismissed as time barred.
7. The appellant herein is before this Hon’ble Court challenging the appeal-R.A.No.197/2002 and consequently to restore the appeal pertaining to O.S.No.155/1996.
8. It is noticed that aggrieved by the judgment and decree in O.S.No.153/1996 one Narayanappa had filed a Regular Appeal in 204/2002 which came to be dismissed on 18.02.2010 and aggrieved by the same, the said person preferred RSA No.1715/2010 which is also dismissed. Therefore, the judgment and decree in O.S.No.153/1996 has attained finality, despite the challenge being made by Sri.Narayanappa, in which the appellant herein was respondent No.2. It appears that the said Sri.Subbarayappa, who succeeded in the suit has taken possession and sold the property to one Babu S/o.Huchapa on 29.12.2014.
9. On careful perusal of the records and the judgment and decree and the submissions made by the learned counsel for the appellant, it is noticed that the appellant has not been diligent in prosecuting the appeal and so also the original suit.
10. Learned counsel for the appellant after addressing arguments for sometime sought time in the guise that his senior colleague would address arguments before this Court. Considering the order of the suit and the appeal and nature of the proceedings, granting adjournment may not be appropriate, as it is heard for good length of time.
11. Therefore, I am of the opinion that the appeal filed by the appellant does not deserve consideration, as sufficient cause has not been shown by the appellant and the appellant has been negligent in conducting the appeal.
Accordingly, appeal is dismissed. No costs.
Sd/- JUDGE SV