IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.2037 OF 2015 (Par) BETWEEN:
SRI MUNIRAJU S/O LATE CHIKKA VENKATARAVANAPPA, AGED ABOUT 53 YEARS, R/AT LAKKUR VILLAGE, MALUR TALUK, AT PRESENT RESIDING AT HOUSE NO.216, HAL KODIHALLI, 9TH CROSS, GANGAMMA DEVALAYA ROAD, INDIRANAGAR POST, BENGALURU – 560 008. …APPELLANT (BY SRI V.VISWANATHA SETTY, ADVOCATE) AND:
1. SMT.CHAKKARLAMMA, W/O LATE VENKATARAVANAPPA, AGED ABOUT 63 YEARS.
2. SRI MANJUNATH S/O THIMMARYAPPA AND SEETHAMMA., AGED ABOUT 38 YEARS, RESPONDENTS NO.1 AND 2 ARE RESIDING AT LAKKUR VILLAGE, MALUR TALUK, KOLAR DISTRICT – 563 130. ...RESPONDENTS THIS RSA FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.02.2014 PASSED IN R.A.NO.34/2012 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.01.2012 PASSED IN O.S.NO.356/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MALUR.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The plaintiff in O.S.No.356 of 2011 on the file of the Senior Civil Judge and JMFC, Malur has come up in this second appeal impugning the concurrent findings of both the courts below in dismissing the suit for partition.
2. This appeal is filed with delay of 578 days. Hence, application in I.A.No.1 of 2015 is filed. Before issuance of notice to the respondents on the said application, learned counsel for the appellant was called upon to explain the delay to the satisfaction of this Court.
3. Heard the learned counsel for the appellant.
Perused the affidavit filed in support of the application. On going through the affidavit, it would indicate that the suit of the plaintiff in O.S.No.356/2011 came to be disposed of by judgment dated 27.01.2012, which was taken up in appeal in R.A.No.34/2012 within two months there from. The said appeal came to be dismissed by judgment and decree dated 12.02.2014. The material on record would indicate that this second appeal was filed on 14.12.2015, i.e., with a delay of nearly one year ten months. The reasons stated in the application is that the appellant was bitten by a snake, due to which, he had developed injuries similar to gangrene in the left ankle of his leg and in that behalf, there was a delay in approaching the Court.
4. However, when the affidavit is looked into as to the date when he was bitten by snake and how long he was under treatment, nothing is forthcoming and there are no documents to support the same. In that view of the matter, this Court would find it difficult to believe the reasons for delay. However, the manner in which the litigation is pursued, the appellant was diligent as on the date when the suit of the plaintiff was dismissed and he has filed the appeal within two months. In the first appeal before the lower appellate court, the plaintiff was not able to convince the Court that he has made out his case for partition of the suit properties as against the defendants, that there was no status of joint family with reference to the suit properties.
5. In this background, the appeal is dismissed thereby the findings of both the Courts being concurrent, prima-facie it appears that the appellant had no case to pursue the same, that could be the reason for him in not pursuing the matter. However, the filing of the present appeal with inordinate delay of 578 days appears to be more in the nature of chance litigation than pursuing any legal right that is subsisting as on the date of filing of this appeal. In that view of the matter, no justifiable grounds are made out to allow the application, I.A.No.1 of 2015. Hence, the same is dismissed. Consequently, the appeal is also dismissed.
Sd/- JUDGE dh