Karnataka High Court
Krishnappa vs Pillamma W/O Dodda Nagappa Since ... on 18 February, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 18th day of February, 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
R.S.A. No. 2717 of 2010
BETWEEN:
1. Krishnappa
S/o Late Chikkananjappa,
Age about 56 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
2. Maleyappa,
S/o Late Doddananjappa,
Age about 74 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
3. Anjinappa,
S/o Late Doddananjappa,
Age about 69 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
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4. D. Kempaiah,
S/o Late Doddananjappa,
Age about 64 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
5. Mallesh,
S/o Late Chikkananjappa,
Age about 54 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
...Appellants
(By Sri Nagaiah, Advocate)
AND:
1. Pillamma,
W/o Dodda Nagappa,
Since deceased by her
Legal representative :
Smt. Rathnamma,
W/o Jagadish,
Aged about 53 years,
r/o No. 975,
10th Cross, Agrahara
Layout, Yelahanka Post,
Yelahanka Hobli,
Bangalore North Taluk - 560 064.
2. Munishamappa,
Since deceased by his
Legal representative :
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Byre Gowda,
S/o Munishamappa,
Aged about 40 years,
R/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
3. Sri Munithayappa,
S/o Late Doddananjappa,
Age about 66 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
4. Akkayyamma,
W/o Krishnappa,
Age about 64 years,
r/o Koppalu Village,
Kundana Hobli,
Devanahalli Taluk,
Bangalore Rural District - 562 110.
...Respondents
(By Sri M.S. Narayan, Advocate for R1 )
This RSA filed under section 100 of CPC against the
judgment and decree dated 7.6.2010 passed in RA No.
73/2007 on the file of the Presiding Officer, Fast Track Court,
Devanahalli, dismissing the appeal filed against the Judgment
and Decree dated 7-9-2001 passed in OS No.290/1996 on the
file of the Civil Judge (Jr. Dn) & JMFC, Devanahalli.
This RSA coming on for admission this day, the Court
delivered the following :
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JUDGMENT
Though this matter is listed for admission, by consent of learned advocates appearing for parties, it is taken up for final disposal by taking into consideration two facts, namely, that suit in question was filed in the year 1996 and records of both the Courts have been secured.
2. This second appeal is filed by defendants 2, 3, 5 to 7 questioning the correctness and legality of judgment and decree passed by Fast Track Court, Devanahalli, in R.A. No. 73/2007 dated 7.6.2010 where under ex-parte judgment and decree dated 7.9.2001 passed by Civil Judge (Junior Division) and JMFC, Devanahalli, decreeing the suit filed by plaintiff in O.S. No. 290/1996 and grant of 1/4th share of plaintiff over suit schedule property came to be affirmed by dismissing the application for condonation of delay and thereby dismissing the appeal as not maintainable.
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3. I have heard the arguments of learned counsel for appellants Sri Nagaiah and Sri M.S. Narayan, learned counsel appearing for respondent No.1. Notice to respondents 2, 3 and 4 is dispensed with by an order of even date on the memo filed by the learned counsel for the appellants.
4. It is the contention of Sri Nagaiah, learned counsel appearing for appellants that, lower Appellate Court committed a serious error in dismissing the application for condonation of delay in filing the appeal, without considering the fact that appellants herein i.e., defendants 2, 3, 5 to 7 were not duly served before the trial Court and as such they did not have knowledge of the proceedings before the trial Court and only when they were served with notices in final decree proceedings, i.e., FDP 2/2005 they came to know about decree having been passed by trial Court and as such they appeared through their counsel and were contesting the matter on merits in FDP proceedings during which point of time plaintiff Smt. Pillamma expired and only one of the daughters of deceased Pillamma filed an application to come on record as a legatee under the 6 Will and without considering the fact that there were other legal heirs of Pilllamma, said application having been allowed by the Court adjudicating the final proceedings, appellants thereafter, i.e., within a period of about 9 months filed the appeal in question i.e., appeal in RA No. 73/2007 before lower Appellate Court on 22.10.2007 and delay if any is to be reckoned from the date of knowledge of ex-parte judgment and decree coming to the notice of the defendants/appellants and the cause shown there of was required to be examined and non-consideration of this aspect has resulted in erroneously application for condonation of delay being dismissed by lower Appellate Court particularly when defendants case not being examined on merits since they had very good case on merits and as such he seeks for setting aside the said judgment and decree passed by lower Appellate Court by formulating the substantial question of law as formulated in appeal memorandum and answering the same in favour of the appellants.
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5. He would elaborate his submission by contending that even on merits trial Court was not justified in decreeing the suit in respect of self acquired properties of defendants and as such judgment of trial Court is liable to be set aside. He would contend that there was no material whatsoever which was placed by plaintiffs before the trial Court to establish the fact that suit schedule properties are ancestral properties. In view of the defence set up by appellants before the lower Appellate Court it ought to have allowed the application for condonation of delay by accepting cause shown in the affidavit supporting application for delay.
6. Per contra, Sri M.S.Narayan, learned counsel appearing for contesting first respondent would support the judgment and decree passed by trial Court and would contend that findings recorded by trial Court is based on facts and there is no substantial question of law involved in this appeal which requires to be formulated, adjudicated or much less to be answered that too in favour of the appellants. He would draw the attention of Court to the records of lower Appellate 8 Court to buttress his argument that defendants who had filed the present appeal were fully aware of the judgment and decree passed by trial Court even as on 2005 and there is no explanation whatsoever forthcoming from the affidavit supporting the application for condonation of delay to accept the cause shown by them for belatedly filing the appeal RA 73/2007 and on account of there being no cause shown for delay in filing the appeal at least from the date of knowledge i.e., 2005 till date of filing of appeal i.e. 22.10.2007 the lower Appellate Court has rightly appreciated the evidence tendered by parties and rejected the application and consequently dismissed the appeal which does not call for interference. In support of his submission he relies upon the judgment of the Hon'ble Apex Court in ORIENTAL AROMA CHEMICAL INDUSTRIES LIMITED vs GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION AND ANOTHER reported in 2010 AIR SCW 1788.
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7. Having heard learned advocates appearing for parties, I am of the considered view that following substantial questions of law would arise for my consideration : -
(i) Whether Lower Appellate Court was justified in arriving at a conclusion that suit summons was duly served on defendants 2, 3, 5, 6 and 7 before trial Court and same is contrary to material on record?
(ii) Whether Lower Appellate Court was justified in dismissing I.A.2/2007 filed seeking condonation of delay on the ground that there was a delay of 7 years in filing the appeal?
8. Facts in brief leading to filing of this appeal are as under : -
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Parties are referred to as per rank in trial Court. Plaintiff filed suit for partition in O.S. No. 290/1996 seeking 1/4th share in suit properties contending that one Sri. Maleyappa had four sons, namely Doddananjappa, Chikkananjappa, Eerappa and Kempanna. There was no division of properties belonging to the original propositus Maleyappa. Plaintiff was the only surviving legal heir in the branch of Eerappa and on demise of original propositus, second son-Chikkananjappa was managing affairs of joint family as its Kartha and on his demise his son Doddananjappa became Kartha and after death of said Doddananjappa his eldest son Munishamappa-first defendant was managing affairs of joint family. Plaintiff being sole surviving legal heir in the branch of Eerappa was entitled to 1/4th share to which her father was entitled to and despite demand made it was not acceded to and as such she sought for partition. Trial Court has held that suit summons issued to defendants 1 to 3 and 6 to 8 was served and placed them ex-parte. On appreciation of the oral and documentary evidence tendered by plaintiff, trial 11 Court decreed the suit by its judgment and decree dated 7.9.2001.
9. Aggrieved by this judgment and decree, defendant Nos. 4 and 6 filed an appeal in RA No. 73/2007. Subsequently, defendants 1, 2, 3, 5 and 7 were also added as appellants by virtue of order dated 26.10.2007. Since there was a delay in filing the appeal, an application-I.A.No.II was filed seeking for condonation of delay. Said application was supported by the affidavit of Sri Munithayappa who was fourth defendant before trial Court. Before the lower Appellate Court he tendered evidence as PW1 on the application for condonation of delay and produced 7 documents which were marked as Exs. P1 to P7. On appreciation of evidence, both oral and documentary, and considering the material on record, lower Appellate Court did not accept the cause shown for delay and rejected the same and consequently dismissed the appeal filed by appellants.
10. Re. Point No. 1:- This Court by order dated 18.3.2011 had directed the registry to secure records to 12 ascertain as to whether defendants were duly served or not before the trial Court in as much as a specific plea, has been raised in this second appeal that all the defendants were not duly served before trial Court. Records having been secured was perused by this Court and it is noticed from trial Court records that suit summons was issued to defendants 2, 3 and 6 and they were duly served through Court bailiff. Endorsement has been made to the said effect by the bailiff and the signatures of defendants 2, 3 and 6 are also found on the reverse side of the suit summons. In so far as 5th defendant is concerned, suit summons was returned unserved and as such plaintiff was permitted to take out summons by Registered Post Acknowledgement Due and it has been duly served on 5th defendant. Postal acknowledgement found in the trial Court record would evidence this fact. Thus, contention of learned counsel appearing for appellants that defendants 2, 3, 5 and 6 were not served personally is without merit and it is liable to be rejected and it is accordingly rejected. 13
11. In so far as summons issued to defendant 7 is concerned, records would reveal that suit summons issued through Court has been returned unserved for two reasons (1) Not found during delivery time. (2) Door locked.
As such, trial Court has ordered for issuance of fresh suit summons on 27.10.1998. Matter came to be adjourned to 2.12.1998. Admittedly, as on 2.12.1998, suit summons was not served on D7. However, entry is found in the order sheet dated 23.2.1999 that suit summons is served on D7 and as such he is placed ex-parte. Office copy of the suit summons returned by bailiff would indicate that shara is otherwise, namely bailiff has returned the suit summons with the following endorsement : -
"SS to D7 unserved, out of station Sd/- bailiff 3/10/1998"
As to when suit summons to D7 is subsequently served is not forthcoming from records. As such, the contention of learned counsel appearing for appellant that suit summons was not served on D7 deserves to be accepted.
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12. This was also one of the grounds raised by 7th defendant who was 7th appellant before the lower Appellate Court which seems to have not been considered by the lower Appellate Court. On the ground of suit summons having not been duly served on D7, appeal has been preferred by him along with other co-defendants, namely defendants 2, 3, 5 and
6. Even if application for condonation of delay was to be rejected it could have been confined to these defendants who were served and same ground could not have been extended to 7th defendant who was 7th appellant to hold application for delay in filing the appeal is to be dismissed. On this short ground, order of lower Appellate Court in so far as 7th defendant is concerned is liable to be set aside.
13. Re. Point No. (i) Appellants in the affidavit supporting the application for condonation of delay, namely I.A.No. II filed before Lower Appellate Court have contended that they were not aware of the proceedings before trial Court and only when notices were served on them in final decree proceedings, i.e., FDP 2/2005 they came to know about ex- 15 parte judgment and decree passed in O.S. No. 290/1996 and as such they were contesting final decree proceedings and only when application filed by the applicant to come on record claiming to be legatee under the Will in final decree proceedings on the demise of original plaintiff was allowed on 17.1.2007 they contacted their advocate and took steps to file appeal RA 73/2007, as such appeal was filed on 22.10.2007 and on these grounds they sought for condonation of delay. It would be appropriate to notice at this juncture that by adopting go slow tactics and not prosecuting their claim war footing by appellants if they were really aggrieved would not be a ground to condone the delay until and unless cause being shown to be genuine cause or sufficient cause. Absence of negligence or inaction on the part of party seeking condonation of delay cannot be construed as a condition precedent for interpreting sufficient cause. Hon'ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER vs MST. KATIJI AND OTHERS reported in AIR 1987 SC 1353 has laid the contours under which application 16 for condonation of delay requires to be considered. The dicta laid down by Apex Court reads as under:-
3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-
purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very 17 threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
14. A perusal of the judgment of Apex Court would clearly indicate that Court should adopt liberal approach and reasons for adopting such approach requires to be assigned. Thus, the underlying principle to be kept in mind is that the ultimate object of the procedural law is to see that substantial justice is done to the parties. The endeavour of the Court is to 18 see that disputes are resolved as far as possible on merits in just, fair and reasonable manner. Thus, the question that would peg the issue is, whether there is deliberate and intentional delay. If the answer is in the affirmative, application deserves to be rejected and if the answer is in the negative, liberal approach has to be adopted and delay deserves to be condoned. It has also to be examined in the facts and circumstances of a case, whether there has been an intentional delay and by adopting such recourse the litigant was likely to benefit or not. To achieve the object of substantial justice, the word "sufficient cause" requires to be examined and interpreted. It also requires to be noticed that it is not the length of delay which requires to be considered, but cause for such delay as being genuine, not intentional and a bona fide one.
15. Keeping this in mind, when the facts on hand are examined, it would emerge that as already discussed above, admittedly D7 was not served with the suit summons. Despite the said factual matter, trial Court has proceeded to decree the 19 suit and lower Appellate Court has erroneously not considered this facet. The judgment and decree would not disclose as to whether it has examined that D7 was served or not. In so far as D2, 3, 5 and 6 are concerned they were admittedly duly served before the trial Court. They did not any file written statement. On the basis of the pleadings of parties, trial Court decreed the suit. In the appeal filed by them along with D7 it was contended that they were not aware of the judgment and decree passed by trial Court and they came to know only in the year 2005 that too when they were served with the summons in FDP 2/2005. There cannot be any dispute with regard to this factual aspect in as much as first appellant himself admit in paragraph 3 of the affidavit supporting the application that notice in FDP 2/2005 was served on 3.9.2005. Thus, date of knowledge even based on the admissions made by appellant could be reckoned from 3.9.2005. If so construed, delay cannot be construed as 7 years as held by Lower Appellate Court by taking into consideration date of judgment of trial Court which was passed on 7.9.2001.
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16. Thus, if delay is to be reckoned from date of knowledge being construed as 3.9.2005 till date of filing of appeal, i.e., 22.10.2007, delay would be approximately 2 years 1 month. It is not in dispute that defendants 2, 3, 5 and 6 slept over their rights. Immediately on service of notice in final decree proceedings they have engaged learned advocate and he has entered appearance on their behalf by filing vakalathnama as evidenced from order sheet in FDP 2/2005 which came to be marked as Ex.P5. Learned advocate entered appearance on their behalf on 3.9.2005. It is stated in the affidavit supporting the application that these defendants were hopeful of getting the shares apportioned in the final decree proceedings. During the pendency of the final decree proceedings, plaintiff expired leaving behind her sons and daughters to succeed to her estate. However, only one of the daughters filed an application to come on record as the legal heir of deceased plaintiff claiming to be a legatee under the Will. It is at this juncture, these defendants, namely defendants 2, 3, 5 and 6 woke up from their slumber, pursued their grievance, approached their advocate and got filed the appeal RA 73/2007 before the lower 21 Appellate Court on 22.10.2007 and thus reckoning the delay from the date of appearance in FDP i.e., 3.9.2005 or alternatively from the date of service of notice in FDP which was also was 3.9.2005 the delay would be 2 years 1 month approximately.
17. Application filed by one of the legal heirs of deceased appellant to come on record in place of plaintiff came to be allowed on 17.1.2007. Appeal in question was filed on 22.10.2007. Thus, within 9 months from the date of application allowed by Court adjudicating FDP, appeal came to be filed. This Court cannot lose sight of the fact that these appellants/defendants are rustic villagers; not conversant with the procedural law; they are unaware of the worldly affairs and in this factual background, the cause shown by them in the affidavit supporting the application cannot be construed as one tainted with mala fides. By filing the appeal belatedly these defendants would not stand to benefit but on the other hand they were bona fide pursuing their grievance by appearing in FDP proceedings and contesting the matter. As held by the Apex Court in Mst. Katiji' (case referred to supra) and reiterated 22 in number of cases thereafter, this Court has to adopt a liberal approach while considering the claim for condonation of delay and ensure that the lis comes to an end on merits rather than nipping at the bud on technicalities which would not be the ultimate aim while administering justice.
18. In that view of the matter, point Nos. (i) and (ii) formulated herein above have to be answered in favour of the appellants against the respondents. However, taking into consideration the fact that the first respondent has been made to appear before the lower Appellate Court as also before this Court, to defend her rights and expend both time and money, appellants cannot be allowed to go without putting them on terms. As such, this Court is of the considered view that the appellants herein are required to be mulcated with exemplary costs for the reason that they have made first respondent to run round in different forums and also on the ground that there is some negligence on the part of appellants in not prosecuting their just cause within a reasonable time. Hence, the appellants are required to pay costs to first respondent which is quantified at Rs.20,000/-.
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19. For the reasons aforesaid, following judgment is passed : -
(i) Appeal is hereby allowed by answering the substantial questions in favour of the appellants.
(ii) Judgment and decree passed by the Fast Track Court, Devanahalli, in R.A. No. 73/2007 dated 7.6.2010 is hereby set aside. IA No. II/2007 filed under Section 5 of the Limitation Act is hereby allowed and delay is condoned.
(iii) Appeal RA No. 73/2007 is restored to the file of Fast Track Court, Devanahalli or such other Court now designated to hear this appeal for being adjudicated on merits and in accordance with law.
(iv) The lower Appellate Court is also directed to dispose of the appeal expeditiously at 24 any rate within 8 months from the date of appearance of parties.
(v) Appellants and 1st respondent shall appear before Lower Appellate Court on 11.3.2013 and no further notices shall be issued to them. However, Lower Appellate Court shall issue notice to other parties who have not appeared before this Court.
(vi) Payment of costs of Rs.20,000/- jointly by appellants herein to first respondent shall be condition precedent for appeal being taken up by the lower Appellate Court.
In view of the disposal of the appeal on merits, Misc. Cvl. 20517/2010 for stay does not survive for consideration and accordingly it is rejected.
Sd/-
JUDGE ckl