IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1916 OF 2018 (SP) BETWEEN:
SRI RAMAIAH S/O LATE ANJANAPPA SINCE DECEASED BY HIS LRS a) SMT.SHARADAMMA W/O LATE A.RAMAIAH AGED ABOUT 90 YEARS b) SMT.YASHODAMMA D/O LATE A.RAMAIAH AGED ABOUT 55 YEARS c) SMT.SUSHEELAMMA D/O LATE A.RAMAIAH AGED ABOUT 53 YEARS d) SMT.BHAGYAMMA D/O LATE A.RAMAIAH AGED ABOUT 51 YEARS e) SRI JAGADISH S/O LATE A.RAMAIAH AGED ABOUT 43 YEARS f) SRI LOKESH S/O LATE A.RAMAIAH AGED ABOUT 41 YEARS ALL ARE RESIDING AT BACCHAHALLI VILLAGE NANDI HOBLI, CHIKKABALLAPUR TALUK AND DISTRICT – 562 101 …APPELLANTS (BY SRI RAJA R., ADV.) AND:
1. SRI LAXMANA S/O LATE NARASAPPA AGED ABOUT 73 YEARS R/AT BEEDIKERE VILLAGE TUBUKERE HOBLI DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT KARNATAKA – 561 205 2. SRI R.RAMANJINAPPA S/O LATE RAMIAH AGED ABOUT 58 YEARS R/AT DIBBUR VILLAGE NANDI HOBLI GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT KARNATAKA – 562 101 ...RESPONDENTS (BY SRI AJAY PRABHU M., ADV. FOR SRI SACHIN B.S., C/RESPONDENT) THIS APPEAL IS FILED UNDER SECTION 100 OF THE C.P.C. 1908, AGAINST THE ORDER DATED 07.09.2018 PASSED ON IA NO.1 IN RA NO.10136/2016, ON THE FILE OF THE IV ADDL. DIST. AND SESSION JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT DISMISSING THE IA NO.1 AND DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED:30.03.2002 PASSED IN OS.NO.455/1995 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DVN.) AND JMFC., DODDABALLAPURA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is preferred challenging the order dated 07.09.2018 in R.A.No.10136/2016, passed by the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District.
2. Appellants are the heirs of one Ramaiah.
Second respondent Ramanjinappa is also the son of Ramaiah.
3. First respondent filed O.S.No.455/1995 before the Additional Civil Judge (Jr.Dn.) and J.M.F.C. Doddaballapura against Ramaiah and the second respondent for specific performance of agreement of sale dated 20.05.1986 in respect of land bearing Sy.No.71/2 measuring 2 acres 24 guntas situated within Beedikere Village, Doddaballapura Taluk.
4. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court.
5. Plaintiff contended that defendants executed the said sale agreement for consideration of Rs.45,000/- and put him in possession of the property in part performance of the contract. He further contended that despite his readiness and willingness and issuing notice, defendants failed to execute the sale deed.
6. Defendants though appeared in response to service of the summons did not contest the suit. The Trial Court decreed the suit on 30.03.2002.
7. Defendant No.1 filed Miscellaneous No.
19/2002 under Order IX Rule 13 of C.P.C. seeking setting aside the exparte decree, on the ground that he was not given proper opportunity and suit summons was not duly served on him. During the evidence he contended that, his signature on the suit summons was obtained without explaining the contents of the plaint, therefore it was not due service. The Trial Court dismissed Misc. No.19/2002 on 29.03.2010 on merits.
8. Ramaiah challenged the said order before the Senior Civil Judge, Doddaballapura in M.A.No.4/2010 which came to be dismissed on 14.12.2011. He challenged the orders in Miscellaneous No.19/2002 and M.A.No.4/2010 before this Court in C.R.P.No.140/2012.
Pending the said petition, Ramaiah died on 29.01.2014. This Court vide order dated 07.07.2015 dismissed C.R.P. 140/2012 on merits.
9. Thereafter on 14.09.2015 appellants filed R.A.No.40/2015 before the Senior Civil Judge & J.M.F.C., Doddaballapura. Later the said appeal was transferred to the Court of IV Additional District & Sessions Judge, Doddaballapura and renumbered as R.A.No.10136/2016. There was delay of 4918 days in filing the said appeal. The appellants contended that they were awaiting the result in the proceeding initiated under Order IX Rule 13 C.P.C. therefore, there was delay in filing the appeal.
10. The First Appellate Court by the impugned order rejected the said contentions and dismissed the application for condonation of delay, consequently the appeal on the cost of Rs.5,000/-.
11. Perusal of the order of the First Appellate Court shows that appellants took up the contention that Ramaiah was wrongly advised to proceed under Order IX Rule 13 C.P.C. and therefore the matter was being prosecuted before the wrong Forum and appellants are entitled for exclusion of the said time.
12. Sri Raja R. learned counsel for the appellants submits that dismissal of the application for condonation of delay is unsustainable in law and the sale agreement is hit by the provisions of Karnataka Prevention of Fragmentation & Consolidation of Holdings Act, 1966. Therefore, according to him the case involves substantial questions of law framed in appeal memorandum for admission.
13. In support of his arguments he relied upon the following judgments:
1. ILR 2003 KAR 4535 Smt. Khamarunnisa vs. Mudalappa 2. RSA No.2551/2006 Parvathamma v. Channamma 3. (1994) 1 SCC 1 S.P. Chengalvaraya Naidu (Dead) by LRs. Vs.
Jagannath (Dead) by LRs. & Others 4. (2004) 13 SCC 667 Dinesh Prabhulal Barat Vs.
Sai Palace Hotels Pvt. Ltd.
14. Per contra, Sri Ajay Prabhu, learned counsel for Sri Sachin B.S. learned counsel for first respondent submits that there was inordinate delay of 4918 days and the same was not satisfactorily explained, there are no substantial questions of law involved in the case. He further submits that since no plea of agreement being violative under the provisions of the Karnataka Prevention of Fragmentation & Consolidation of Holdings Act, 1966, was raised before the Trial Court, the said question does not become substantial questions of law.
15. Having regard to the rival contentions of the parties, the point that arises for consideration is:
Whether the case involves any substantial questions of law for admission?
16. The appeal under Section 100 of C.P.C. cannot be admitted unless a substantial question of law is made out. The Hon’ble Supreme Court in Santosh Hazari –vs-
Purushotham Tiwari AIR 2001 SC 965 has held that substantial question of law must be debatable, not settled. It has further held that substantial question of law is raised only on the basis of the pleadings of parties and if there are no pleadings, any issue raised in the second appeal for the first time cannot be considered as substantial question of law.
17. In the case on hand, predecessor of the appellants or second defendant did not contest the suit by filing written statement, though appeared in the case. The grounds setup by defendants for their failure to contest the suit were rejected in the proceedings initiated by them under Order IX Rule 13 C.P.C. up to this Court in C.R.P.No. 140/2012. All along during the life time Ramaiah never whispered that he was proceeded under Order IX Rule 13 C.P.C. under wrong legal advice. He prosecuted those proceedings for 13 years through his counsel. Findings in C.R.P. No.140/2012 have attained finality.
18. The perusal of the order of the First Appellate Court shows, that was the sole contention raised by them. Apart from that the second defendant in the suit did not challenge those proceedings nor file appeal. Under these circumstances, First Appellate Court was justified in rejecting the application consequently the appeal. No substantial questions of law is involved in the case to admit the appeal. The appeal is vexatious. Therefore the appeal is dismissed with costs.
In view of the dismissal of the appeal, I.A. Nos.1/2018 and 2/2018 do not survive for consideration. Therefore, disposed of accordingly.
Sd/- JUDGE HR