Karnataka High Court
Sri. S. Venkatachala vs Smt. Rangamma on 17 March, 2022
C.R.P.No.270/2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CIVIL REVISION PETITION NO.270/2019
BETWEEN:
1. SRI S.VENKATACHALA
S/O. LATE SENGEGOWDA
AGED ABOUT 49 YEARS
2. SMT.ESHWARI
W/O. GOVINDA
AGED ABOUT 53 YEARS
BOTH ARE R/AT KUDLURU VILLAGE
KOLLEGALA TALUK
CHAMARAJANAGAR DISTRICT- 571 342 ...PETITIONERS
(BY SRI D.S.HOSMATH, ADVOCATE)
AND:
1. SMT.RANGAMMA
W/O. LATE IRULAPPAN
AGED ABOUT 81 YEARS
2. SRI BASAVARAJU
S/O. LATE IRULAPPAN
AGED ABOUT 63 YEARS
3. SRI GOVINDARAJU
DEAD BY LRS
(a) SMT.VEERAMMA
W/O. LATE GOVINDARAJU
AGED ABOUT 48 YEARS
(b) SRI MURUGESH
S/O. LATE GOVINDARAJU
AGED ABOUT 24 YEARS
C.R.P.No.270/2019
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(c) SRI MADESH
S/O. LATE GOVINDARAJU
AGED ABOUT 26 YEARS
R3(a) TO R3(c) ARE R/AT
CAUVERIPURAM VILLAGE & POST
METTUR TALUK, SALEM DISTRICT- 636 303
4. SRI RAJENDRA
S/O. LATE IRULAPPAN
AGED ABOUT 46 YEARS
R1, R2 & R4 ARE R/AT
PALANIMEDU VILLAGE
RAMAPURA HOBLI
KOLLEGALA TALUK
CHAMARAJANAGAR DISTRICT- 571 444
5. SMT.MAHADEVI
W/O. ANNAMALAI
AGED ABOUT 63 YEARS
R/AT GURUVAREDDIYURU
ERODE DISTRICT
TAMIL NADU- 638 504
6. SMT.MARAKKA
W/O. KANDASWAMY
AGED ABOUT 53 YEARS
R/AT SENTURU
ERODE DISTRICT
TAMIL NADU- 638 001
7. SMT.MAILI
W/O. LATE DEVARAJU
AGED ABOUT 48 YEARS
R/AT SAMATHAPURAM
HANDIYURU, ERODE DISTRICT
TAMIL NADU- 638 001
8. SMT.RATHNAMMA
W/O. PONNUSWAMY
AGED ABOUT 43 YEARS
R/AT KRISHNAPURAM
HANDIYURU, ERODE DISTRICT
TAMIL NADU- 638 001
C.R.P.No.270/2019
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9. SMT.PARVATHI
W/O. PALANISWAMY
AGED ABOUT 42 YEARS
R/AT THATHKAPALLI
SATHYA MANGALA
ERODE DISTRICT
TAMIL NADU- 638 401
10. SMT.CHINNAMMA
W/O. MANI
(DELETED) ...RESPONDENTS
(BY SRI C.MAHADEVASWAMY, ADVOCATE FOR R1, R2, R3(a)
TO R3(c), R4 TO R9;
R10 DELETED V/COURT ORDER DATED 26.02.2021)
THIS CIVIL REVISION PETITION IS FILED UNDER 115 OF
CPC PRAYING TO SET ASIDE THE ORDER DATED 13.03.2019
PASSED BY SENIOR CIVIL JUDGE & JMFC, KOLLEGALA IN
MISC.NO.9/2016
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION HIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the rejection of their application for condonation of delay, the petitioners in Misc.No.9/2016 on the file of Senior Civil Judge & JMFC, Kollegala have preferred the above petition.
2. The respondents filed O.S.No.76/2009 against the petitioners Venkatachala, Eshwari and Chinnamma wife of late Shengaraju for partition and separate possession of their share in the suit schedule property. C.R.P.No.270/2019 4
3. The petitioners did not contest the said suit. The suit came to be decreed ex parte on 28.06.2010. Challenging that judgment and decree, the petitioners preferred appeal before Senior Civil Judge & JMFC, Kollegala. Since there was delay of 6 years and 43 days, they filed application for condonation of delay in filing the appeal. The First Appellate Court registered the said case in Misc.No.9/2016.
4. The petitioners claim that the suit summons in O.S.No.76/2009 was not served on them, they came to know about the proceedings only after they received the notice in the final decree proceedings, therefore, there was delay in filing the appeal.
5. The First Appellate Court recorded the evidence on the said application. Petitioner No.1 was examined as PW.1 and Exs.P1 to P15 were marked on their behalf. PW.1 reiterated the grounds stated in his affidavit. Though respondent No.3 was dead, without reporting that to the Court, learned Counsel for respondent No.1 had cross-examined PW.1. Therefore the First C.R.P.No.270/2019 5 Appellate Court eschewed that evidence. After the legal representatives of respondent No.3 were brought on record, they did not choose to cross-examine PW.1 to controvert his evidence on oath.
6. Admittedly, the suit summons issued to the petitioners at the first instance was returned with endorsement that they are not in station. The suit summons issued to the petitioners on the second occasion by registered post acknowledgement due was returned with endorsement 'refused'. PW.1 entered the witness box to deny such endorsement of 'refusal'.
7. The respondent did not examine the serving agency to prove the said endorsement of 'refusal'. Despite that the First Appellate Court rejected the application saying that there are no sufficient grounds to condone the delay.
8. When service of summons itself was not proved, there was no reason to disbelieve the statement of the petitioners that they came to know about the proceedings only after service of notice in the final decree C.R.P.No.270/2019 6 proceedings. The First Appellate Court has taken very narrow view and the rejection of the application has led to miscarriage of justice. Therefore the petition is allowed.
The impugned order is hereby set aside. Misc.No.9/2016 under Order XLI Rule 3 of CPC read with Section 5 of the Limitation Act filed by the petitioners is allowed.
Since the original proceedings are of the year 2009, the First Appellate Court shall hear the appeal and dispose of the same as expeditiously as possible at any rate within six months from the date of receipt of copy of this order.
The parties shall appear before the First Appellate Court on 04.04.2022 without any further notice.
Sd/-
JUDGE KSR