Karnataka High Court
Sri Moyamalli S/O Late Dawalsab Arakati vs Sri Khalid S/O Late Dawalsab Arakati on 19 September, 2025
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RSA No. 100350 of 2025
RESERVED ON : 11.09.2025
PRONOUNCED ON : 19.09.2025.
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 19TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO.100350 OF 2025
BETWEEN:
SRI. MOYAMALLI S/O. LATE DAWALSAB ARAKATI
AGE. 60 YEARS, OCC. SELF EMPLOYED,
R/O. CTS NO.1099, 2ND CROSS,
AZAM NAGAR, BELAGAVI.
...APPELLANT
(BY SRI. KISHOR SUDHAKAR SUTAR, ADVOCATE)
AND:
1. SRI. KHALID S/O. LATE DAWALSAB ARAKATI
AGE. 73 YEARS, OCC. RETIRED,
R/O. FLAT NO. 203, ROHIT PALACE,
MALLIKARJUN
MARATHA COLONY TILAKWADI,
RUDRAYYA
KALMATH BELAGAVI-590001.
Digitally signed by
MALLIKARJUN
RUDRAYYA 2. SRI. MOULA S/O. DECEASED DAWALSAB ARAKATI
KALMATH
Date: 2025.09.19 AGE:72 YEARS, OCC: RETIRED GOVT. EMPLOYEE,
15:12:41 +0530
R/O. FLAT NO.203, ROHIT PALACE,
MARATHA COLONY, TILAKWADI,
BELAGAVI-590001.
2. SMT. BIBI @ ZUBEDABANU W/O. AKBAR SANADI
AGE. 67 YEARS, OCC. HOME MAKER,
R/O. 2ND CROSS, AZAM NAGAR,
BELAGAVI-590001.
-2-
RSA No. 100350 of 2025
3. SMT. SHAHANAZ W/O. ISMAIL NAYAKWADI
AGE. 58 YEARS, OCC. HOME MAKER,
R/O. DR. AMBEDKAR SOCIETY PLOT NO. 132,
SHIROL TAL. JAYASINGAPUR,
DIST. KOLHAPUR, MAHARASTRA STATE-416001.
...RESPONDENTS
(BY SRI. A.A. MULAWADIMATH, ADVOCATE FOR C/R1)
THIS RSA FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE IN R.A.NO.93/2022 DATED
20.03.2025 PASSED BY THE X ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI AND FINAL DECREE DATED 29.01.2019 IN
F.D.P.NO.17/2017, PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE, BELAGAVI AND TO DECREE THE SUIT AS PRAYED FOR
AND TO PASS ANY OTHER DECREE/ORDER AS DEEMED FIT BY
THIS COURT IN THE INTEREST OF JUSTICE AND EQUITY.
IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING
BEEN HEARD AND RESERVED ON 11.09.2025 AND COMING ON
FOR "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The appellant has filed this appeal against the order dated 20th March, 2025, passed in RA No.93 of 2022 by the 10th Additional District Judge, Belagavi, by which judgment the Application filed by the appellant under Section 5 of Limitation Act, came to be dismissed.
2. Brief facts leading to this appeal are that the appellant was defendant No.4 in OS No.28 of 2010 filed by respondent No.1, seeking relief of partition and separate possession of suit -3- RSA No. 100350 of 2025 schedule property. The suit came to be decreed holding that the original plaintiff is entitled to one-fourth share in the schedule property. The original plaintiff in the suit, filed Final Decree Proceedings in FDP No.17 of 2017 on the file of Principal Senior Civil Judge, Belagavi. The plaintiff manipulated the signature of the appellant herein to obtain the final decree of OS No.28 of 2010, behind the back of his own brother, the appellant herein.
When the appellant came to know about the final decree, he filed miscellaneous application bearing No.8 of 2019 under Order IX Rule 13 of CPC seeking to set aside the order of the Court which placed him ex-parte in final decree proceedings No.17 of 2017.
The miscellaneous application came to be rejected. Against the same, Miscellaneous Appeal No.8 of 2019 came to be filed and during the pendency of the miscellaneous appeal, the appellant preferred appeal in RA No.93 of 2022 against the final decree in FDP No.17 of 2017. The appeal was dismissed by the first appellate Court. Being aggrieved by the same, appellant is before this Court in this second appeal.
3. The learned Counsel for the appellant would submit that the judgment and decree passed by both the courts below are contrary to facts, grounds and the settled proposition of law.
-4- RSA No. 100350 of 2025The first appellate Court committed a grave mistake in considering Court Commissioner's report which, on the face of it, was devoid of proper application of mind. The first appellate Court failed to consider the merits of the appeal and decided the appeal on sole basis of delay, which is unsustainable. He would further submit that the first appellate Court failed to hold enquiry on the application filed under Section 5 of Limitation Act and hence, sought for formulating substantial question of Law.
4. I have examined the material placed before the Court.
Though the counsel for the appellant has urged several grounds in the memorandum of appeal, this second appeal is preferred only against the order passed on the Application filed under Section 5 of Limitation Act in Regular Appeal No.93 of 2022. The appellant has not sought to adduce evidence on the application filed under Section 5 of Limitation Act. On the country, both the learned Counsels have appeared and submitted their written synopsis. Hence, the submission of the appellant that the first appellate Court has not recorded the evidence, cannot be accepted. On perusal of the impugned order, at paragraphs 10 to 24, the first appellate Court has observed as under:
(10) Point No.1:- The appellant has filed I.A.NO.1 seeking condonation of delay in preferring the appeal. On -5- RSA No. 100350 of 2025 perusal of the judgment in FDP No.17/2017, the impugned judgment was rendered on 29.01.2019. Thus, the appeal could have been preferred within 30 days from that day excluding the period spent for obtaining certified copies. But the appellant has preferred this appeal on 8.12.2022.
Therefore, there is a huge delay of 3 years 9 months 7 days i.e. 1378 days in preferring the appeal.
(11) It is the argument of learned advocate for the appellant that, the length of delay is not the criteria for allowing or disallowing the application of condonation of delay and sufficient cause is the only criterion. In support of his submissions, he has quoted the judgment of Division Bench of Hon'ble Supreme Court in Sabarmati Gas Limited Vs Shah Alloys Limited reported 2023 LiveLaw [SC] 9 wherein it is held as under:-
"As relates to section 5 of Limitation Act, showing sufficient cause is the only criterion for condoning delay. Sufficient cause is the cause for which a party could not be blamed."
On the strength of this ratio, he contends that, the length of delay is not the criterion and the cause of delay if sufficient, the delay can be condoned. There is no quarrel about the ratio laid down by their lordships. Now this court has to examine whether the appellant has made out sufficient cause for condoning the delay or not.
(12) The reason for delay as stated in the affidavit annexed to I.A.NO.1 is that, [i] he did not receive the notice in FDP; but somebody has received it by forging his signature to show that the notice as served; so he could not participate in the proceedings in FDP; [ii] notice of the commissioner was served on him with wrong FDP number. So, he could not appear then also; [iii] he prosecuted the application U/o.IX Rule 13 of Civil Procedure Code before the trial court and the appellate court and hence, there is delay. Let us examine them one by one.
[i] Service of notice of FDP on the appellant:-
(13) The first ground urged by the appellant is that, the notice issued by the court in FDP was not served on him, but his signature was forged on the notice and that -6- RSA No. 100350 of 2025 prevented him from appearing and participating in the FDP.
Here, he alleged forgery and fraud played on him by the petitioner in the FDP as well as the Process Server of the court. This allegation is very serious in nature. In the examination in chief, he states the same. He has produced Ex.P.2 which shows there is signature of the recipient of the notice in English as 'M.D. Arkati' . In the crossexamination he admits as under:-
"£Á£ÀÄ ªÉÆAiÀĪÀ° JE CgÀPÁmÉ CAvÀ EAVèµÀ¤è ¸À» ªÀiÁqÀÄvÉÛÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëzÁgÀgÀÄ JA.r.CgÀPÁmÉ CAvÀ ¸À» ªÀiÁqÀÄvÉÛÃ£É CAvÀ ºÉüÀÄvÁÛgÉ."
This clearly shows that, he signs as M.D. Arkati. Ex.P.2 on its back side contains signature as 'M.D. Arkati'. As there is presumption U/s.114 of Indian Evidence Act regarding correctness of the acts done by the Public Officer, the burden to rebut the same will be on the person who alleges that acts done by the Public Officer is incorrect. The appellant has alleged forgery and fraud played upon him.
(14) In this regard, it is relevant to refer the judgment of Hon'ble Supreme Court in M/s.Gian Chand & Brothers & Another Vs. Rattan Lal @ Rattan Singh reported in 2013 SAR (Civil) 141 wherein it is held as under:
"(B) Evidence Act , 1872- Secs . 101 , 102 -
Burden of proof to establish a fact - Lies on the person who asserts the particular fact to affirmatively establish the same - In case where fraud , misrepresentation or undue influence is alleged by a party in a suit , normally the burden is on him to prove the same ."
In view of the above ratio, the burden was heavy on the appellant to establish that fraud was played upon him and his signature on the notice was forged and hence, he was unable to attend the court. But on perusal of records, except the oral evidence of PW-1, there is nothing to substantiate the said allegations. He has not made any efforts to send the admitted and disputed signatures to hand writing expert to establish that signature appearing on Ex.P.2 notice was forged. Therefore, this court is of the considered opinion that, the appellant has failed to establish that his signature was forged and fraud was played upon him to prevent him from participating in the final decree -7- RSA No. 100350 of 2025 proceedings. Hence, this ground of the appellant falls to the ground.
[ii] Service of notice of Court Commissioner on the appellant:-
(15) Second ground urged by the appellant is that, the commissioner notice in F.D.P. though served on him, it was bearing wrong FDP number i.e. FDP No.27/2017 instead of FDP No.17/2017 and that has made him not to appear during commissioner work and that has also caused delay.
(16) In order to show the cause for delay, the appellant got himself examined as PW-1. In the examination in chief he states the same thing and got marked Ex.P.1 and 2.
Ex.P.1 is the certified copy of the notice issued by the commissioner. It shows that there is correction in FDP number. Originally it was shown to be "27", later corrected as "17". Ex.P.1 does not reveal whether the correction was made prior to sending the notice or thereafter. Interestingly he has not produced the original notice received by him to show that, the FDP number was not corrected and it was shown as '27' only. Therefore, Ex.P.1 does not help the cause of the appellant.
(17) Here the appellant says that, he had received notice by registered post issued by the commissioner which is Ex.P.1. It clearly shows the name and address of the appellant. Even believing that the number of FDP was wrongly shown, as the notice was sent to his address and in his name, he could have verified it properly. No vigilant person keeps quiet without verifying the same in detail. PW-1 in his cross-examination admits that, his father had no other properties than the one shown in OS NO.28/2010. When it is suggested to him by 1st respondent's counsel that, notice contained that the commissioner is visiting the suit property on 26.5.2018 at 3.00 p.m., the appellant states as "£Á£ÀÄ N¢®è" which means he has not read it. This also sounds very strange. When he has participated in the original suit, he cannot be expected to be so negligent. He states that, he had shown the notice to his counsel. Ex.P.1 shows the name of the appellant and the respondents. It shows that the court has ordered for commission work and the notice was sent with regard to that work. It also shows that, property in question is CTS No.1099 which is the suit property. It also shows the name of the court which passed -8- RSA No. 100350 of 2025 the order. Therefore, any ordinary prudent man with minimum common sense would have made detailed inquiry and ascertained what was the cause for which notice was sent. Therefore, the contention of the appellant that, he was misled by wrong FDP number appears to be a convenient lie and not the truth. Therefore, the second ground urged by the appellant does not impress and it cannot be accepted.
(18) As detailed above, the appellant fails to establish that the grounds urged by him constitute sufficient cause to condone the delay. Hence, the appellant is not entitled for the benefit of judgment of Hon'ble Supreme Court in Sabarmati Gas Limited (Supra) quoted by his learned counsel. Thus on the first two grounds, he is entitled for condonation of delay.
[iii] Can the time spent before the trial court in prosecuting application U/o.IX Rule 13 of Civil Procedure Code be condoned:-
(19) Third ground urged by the appellant is that he has prosecuted an application U/o.IX Rule 13 of Civil Procedure Code before wrong forum and hence, the delay is required to be condoned. In support of his submissions, learned advocate for the appellant has relied on judgment of Hon'ble High Court of Karnataka in the case of Action for Community Organization Rehabilitation and Development Vs Union of India, in RFA No.833/2024 reported in NC:2024:KHC:49744 wherein it is held as under:-
"However in respect of the limitation though the appeal is filed within limitation and chosen the wrong forum the limitation can be exempted u/s.14 of the Limitation Act."
Citing this, he submits that, the time spent by him in pursuing the Miscellaneous Petition filed by him to set aside the exparte order and the Miscellaneous Appeal filed by him could be condoned u/s.14 of the Limitation Act.
(20) The appellant states that upon coming to know about the order in FDP, he approached the same court and filed Misc Application NO.8/2019 to set aside the exparte order dated 15.3.2017. It was dismissed on 28.2.2022.
-9- RSA No. 100350 of 2025Then, he preferred Miscellaneous Appeal No.78/2022 on 6.4.2022 and later he has withdrawn the same, preferring the present appeal. Thus, he contends that, he has spent that period litigating his case before the wrong forum and therefore, it is required to be condoned.
(21) At this stage, it is relevant to quote Order IX Rule 13 of Civil Procedure Code which reads as below:-
"13. Setting aside decree ex parte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit".
Thus, in view of the above provisions, a party who suffered exparte judgment or order has two remedies. Firstly is to approach the same court filing miscellaneous application u/o.IX Rule 13 of Civil Procedure Code and second is that, he can prefer an appeal against the ex-parte judgment under Section 96(2) of the CPC can be preferred on merits. Therefore, his petition before the trial court invoking Order IX Rule 13 of Civil Procedure Code cannot be termed as litigation before the wrong forum.
It is his case that, his application under order IX Rule 13 of Civil Procedure Code was rejected by the trial court. Then, he filed a miscellaneous appeal before the appellate court U/o.XLIII Rule 1[d] of Civil Procedure Code, which reads as below:-
"Order XLIII Rule 1(d) CPC reads as below:
"Order XLIII Rule 1. Appeal from orders - An appeal shall lie from the following orders under the provisions of section 104, namely:-
(a) xxx
- 10 -RSA No. 100350 of 2025
(c) xxx
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed exparte."
As the order on application U/o.IX Rule 13 of Civil Procedure Code is an appealable order U/o.XLIII of Civil Procedure Code, the time spent in prosecuting his application U/o.IX Rule 13 of Civil Procedure Code before that court also cannot be termed as litigation before the wrong forum. Therefore, the time spent by the appellant to prosecute his application u/o.IX Rule 13 of Civil Procedure Code cannot be termed as litigation before the wrong forum attracting section 14 of Limitation Act. Under these circumstances, the appellant is not entitled for the benefit of judgment cited by his learned counsel and the delay cannot be condoned invoking section 14 of Limitation Act.
Whether the merits can be a ground to condone the delay?
(22) Learned advocate for the appellant strenuously argues that the proposal made by court commissioner for partition of the property and the final decree passed by trial court on that proposal, is patently erroneous and biased and if the delay is not condoned, his meritorious case will be thrown out of the court, prejudicing his interests. He draws attention of this court, to the proposal of the commissioner wherein he has allotted total land of 308.56 sq.meters as against the available property 306.56 sq.meters. He also draws the attention of the court to the fact that, the division proposed by the court commissioner is irrational and unequal. Prima facie examination of the report reveals that the submission may probably be right.
(23) Learned advocate for the appellant has not quoted any judgments on this point. It is relevant to note here the judgment of Hon'ble Supreme Court reported in the case of Pathapati Subba Reddy [Died] by L.Rs., and others Vs The Special Deputy Collector [LA] NC:2024 INSC 286 [Special Leave Petition (Civil) No.31248 OF 2018] has laid down as below:-
- 11 -RSA No. 100350 of 2025
"On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and [emphasis supplied]
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason
- 12 -RSA No. 100350 of 2025
that the conditions have been imposed, tantamounts to disregarding the statutory provision."
In view of the ratio in the above judgment, merit of the case cannot be considered while disposing of an application u/s.5 of Limitation Act for condoning the delay in preferring the appeal. Therefore, argument of learned advocate for the appellant on the merits of the case cannot be considered by this court now. So, this ground urged by learned advocate for the appellant also will not serve his purpose to get the delay condoned. For all these reasons, point no.1 is required to be answered in the Negative and the I.A.NO.1 filed u/s.5 of Limitation Act is liable to be rejected. Hence point no.1 is answered In the Negative.
(24) Point No.2:- In view of the dictum laid down by the Hon'ble Supreme Court and Hon'ble High Court of Karnataka, the merits of the case cannot be considered while disposing off application for condonation of delay. The appellant has miserably failed to show sufficient cause for delay in preferring the appeal. In view of findings on Point NO.1, the question of considering the merits of the case does not arise. Hence, the order of the trial court does not call for any interference. Accordingly, point no.2 is answered in the Negative."
5. The first appellate Court has passed a well-reasoned order. I do not find any error or illegality in the order impugned.
Absolutely there is no ground to formulate substantial question of law. In the result, I proceed to pass the following:
ORDER Appeal dismissed.
Sd/-
(G BASAVARAJA) JUDGE lnn CT-CMU