IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL NO.720/2013 BETWEEN:
Sri. Narasimhaiah, Son of Late Narasaiah, Aged about 61 years, Residing at S.N. Nagara (A.K. Colony), Kyatasandra, Tumkur Taluk, Tumkur District -572104. . . . Appellant (By Shri. Fayaz Sab.B.G, Advocate) AND:
1. Sri. Kantharaju, Son of Narasimhaiah, Aged about 41 years, Residing at Near Rameshwara Temple, Kyatasandra, Tumkur Taluk, Tumkur District -572104.
2. Sri. Narasimha Murthy, Son of Late Narasaiah, Aged about 51 years, Residing at S.N. Nagara (A.K. Colony), Kyatasandra, Tumkur Taluk, Tumkur District-572 104. . . . Respondents (By Sri. D.R. Anandeeswar, Advocate for R-1, Respondent No.2 served and un-represented) This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 20.07.2011, passed in R.A. No. Nil/2007 on the file of the Principal Senior Civil Judge & CJM, Tumkur, dismissing the appeal filed against the judgment and decree dated 11.10.2002 passed in O.S. No.686/2000, on the file of the III Additional Civil Judge (Junior Division) and IV JMFC., Tumkur.
This Regular Second Appeal coming on for orders, this day, the Court delivered the following:
J U D G M E N T Though this regular second appeal is listed for orders on IA-1/2014, with the consent of learned counsel for the appellant and respondent No.1, the matter is heard for final disposal. For the purpose of convenience, the parties are referred to as per their rank before the trial Court.
2. This regular second appeal is filed by the defendant No.1, against the judgment and decree passed in R.A. No. Nil /2007 dated 20.07.2011, on the file of the Principal Senior Civil Judge and C.J.M., Tumkur, dismissing the IA No.1 for condonation of delay of 6 years 2 months and 26 days in filing the appeal and consequently, dismissing the appeal as not maintainable and thereby confirmed the judgment and decree dated 11.10.2002 passed by the III Additional Civil Judge (Junior Division) and IV JMFC., Tumkur, in O.S.No.686/2000.
3. Succinctly stated, the facts of the case are as under:
It was alleged that late Narasaiah had two wives namely, Sanjeevamma and Narasamma. The suit land has been granted in the name of late Narasamma for the benefit of joint family of late father of the plaintiff and the defendants. After the death of said Narasimhaiah @ Narasaiah and Sanjeevamma, the plaintiff succeeded to the share of his father. Taking advantage of the revenue entries standing in the name of late Narasamma, the wife of late Narasaiah, the defendants are denying the share of the plaintiff. As such, the plaintiff has filed a suit for partition and separate possession in O.S. No.686/2000 claiming 1/3rd share in the suit properties. The learned judge of the trial Court has placed the defendant-appellant exparte and decreed suit by the judgment dated 20.07.2011, holding that the plaintiff-respondent No.1 herein is entitled to 1/3rd share in the suit property by metes and bounds with mesne profits. Being aggrieved by the said judgment, the defendants have preferred regular appeal which was un-numbered, after a long lapse of 6 years 2 months and 26 days.
By the impugned order dated 20.07.2011, the learned judge of the first appellate Court, has dismissed the interlocutory application (IA-1) for condonation of delay and consequently, dismissed the appeal filed by the defendant-appellant as not maintainable. Being aggrieved by the same, the defendant No.1 is before this Court. As, there was a delay of 552 days in filing the appeal, this Court, by a separate order, allowed the application for condonation of delay by imposing costs of Rs.5,000/- payable to the plaintiff- respondent No.1.
4. Learned counsel for the appellant- defendant No.1 vehemently contended that the suit summons was not at all served on the appellant and that the plaintiff-respondent No.1 herein, in collusion with the postal authorities managed to serve the summons on him by manipulating his signature. The appellant came to know about the decree passed by the trial Court, only when he received notice from the Tahsildar in the year 2007. Further, he contended, if the judgment and decree passed by the Courts below are not set aside, the defendant-appellant will be deprived of his valuable rights over the suit property.
5. On the other hand, learned counsel appearing for plaintiff-respondent No.1 strongly argued in support of the impugned judgment and decree passed by the Courts below and prays for dismissal of the appeal.
6. Upon hearing the learned counsel for the parties and on careful perusal of the records, it is seen that the appellant and respondent No.2 herein who are defendants 1 & 2 respectively, were placed exparte before the trial Court. Thereafter, after 6 years 2 months and 26 days, the defendants have preferred an appeal before the first appellate Court. While dismissing the IA-1 filed under Section-5 of the Limitation Act, the learned judge of the first appellate Court has not gone into the merits of the appeal and dismissed the appeal itself as not maintainable, without assigning appeal number. Though it was claimed by the Plaintiff-respondent No.1 that himself and defendants-1 & 2 are siblings of deceased Narasaiah, the same has been disputed by the defendants. Indisputably, the suit was one for partition and separate possession amongst the family members over immoveable properties. Under such circumstances, the learned judge of the first appellant Court ought to have taken a lenient view, while considering the application for condonation of delay and afforded an opportunity to the defendant-
appellant to put-forth his case and ought to have considered the appeal on merits. As, the defendant- appellant were placed exparte before the trial Court, could not conduct their case effectively. Keeping in view the principles of natural justice and having regard to the nature of the suit, relationship of the parties and the totality of the facts and circumstances of the case, this Court is of the considered view that it is just and proper to afford an opportunity to the defendant-appellant to put forth his case, without expressing any opinion on merits of the case.
In the context substantial question of law does not arise. However it is a case for remand.
Accordingly, the appeal is allowed in part. The impugned judgment and decree dated 11.10.2002 passed by the III Additional Civil Judge (Junior Division) and IV JMFC., Tumkur, in O.S.No.686/2000 and the order dated 20.07.2011 passed on IA-1, by the Principal Senior Civil Judge and C.J.M., Tumkur in R.A. Nil /2007 are set aside. The matter is remanded to the trial Court for fresh adjudication.
However, having regard to fact that the suit was of the year 2000, in order to avoid wastage of judicial time, both the parties are directed to appear before the trial Court on 30.03.2019, without expecting any notice from the trial Court. The defendants are directed to file their written statements before the trial Court, within 30 days, without seeking further time. The trial Court shall endeavour to dispose of the appeal, as expeditiously as possible, at any rate within an outer limit of four (04) months from the date of filing of the written statement.
In view of the disposal of the main appeal, pending interlocutory applications, if any, shall stand disposed off.
The Registry is directed to transmit the copy of this judgment to the trial Court, forthwith.
Sd/- JUDGE VR