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2005 DIGILAW 844 (KAR)

Rukminiammal & Ors v. A. Shobitha Kumar

2005-12-15

H.BILLAPPA

body2005
ORDER 1. I.A.I. is to condone the delay of 2565 days in filing the appeal. In the affidavit filed in support of the application the second appellant has stated that the appellants are the owners of the property bearing No. 72,Old No. 110, and 110/A situated at Doddi Gunta, Civil Station, Bangalore and that it was purchased under a registered sale deed dated 22-5-1968 from late Sri M. Abbaiah and that they are in possession and enjoyment of the said property and that it has been leased out to the tenants and they are paying the rents to the first appellant. It is also averred that they had no knowledge of the suit filed by the first respondent in the year 1978 for declaration, injunction and partition of the suit schedule properties and that they have not received any notice from the Court and that they have not been intimated by any advocate about the proceedings in the suit and that they are also not aware of the circumstances under which their signatures have been obtained on the written statement filed in the said suit and that the signatures on the vakalath are not their signatures. It is also averred that in the first week of January, 2002 one Govindraj who is the son of late M. Abbaiah approached appellant No. 1 and requested her to deliver vacant possession of the property in question and then they came to know about the judgment and decree passed against them and thereafter the appellant No. 1 made enquiries and came to know about the judgment and decree passed on 26-11-1994 and that thereafter they applied for the certified copy and obtained it on 2-3-2002 and thereafter they have filed this appeal. 2. It is also stated that respondent No. 1 issued notice dated 31-1-2002 calling upon them to deliver possession of a portion of the premises in their occupation and that they learnt about judgment and decree passed in O.S. No. 3122/1980 only on 2-3-2002 when they obtained the certified copy and, therefore, there is delay in filing the appeal and it is bona fide and not intentional. It is also stated that they have not engaged the services of Sri L. Govindraj, Advocate to represent them in the suit. It is therefore they have prayed for condonation of delay in filing the appeal. 3. It is also stated that they have not engaged the services of Sri L. Govindraj, Advocate to represent them in the suit. It is therefore they have prayed for condonation of delay in filing the appeal. 3. The respondents herein have filed their objections contending that there is inordinate delay of 2565 days in filing the appeal and that Smt. Jalajakshi the second appellant has sworn to a false affidavit and that the appellants herein had engaged the services of a counsel and filed their written statement in the said suit and, therefore the say of the second appellant cannot be believed and the explanation given by her is not sufficient to condone the delay in filing the appeal and, therefore, they have prayed for dismissal of the application. 4. The learned counsel for the appellants contended that the appellants were not aware of the proceedings as they had not received any notice from the Court and it is only when they received the certified copy on 2-3-2002 they came to know about the judgment and decree passed in O.S. No. 3122/1980 and, therefore, there is delay in filing the appeal and it is bona fide and not intentional. He also submitted that the appellants have not engaged the services of any counsel. He therefore submitted that the delay in filing the appeal may be condoned. 5. As against this, the learned counsel for the respondents submitted that there is inordinate delay in filing the appeal and the appellants have not explained the delay in filing the appeal. He also submitted that the say of the appellants cannot be believed as they were represented through a counsel and they have filed their written statement. He also submitted that though the appellants have denied that they had engaged the services of a counsel but they have not denied their signatures on the written statement. He therefore submitted that it is clear from the records that the appellants have participated in the proceedings and they were represented through a counsel. He therefore submitted that the application is liable to be dismissed. 6. I have carefully considered the submissions made by the learned counsel for the parties. 7. I do not find any merit in the submission of the learned counsel for the appellants. He therefore submitted that the application is liable to be dismissed. 6. I have carefully considered the submissions made by the learned counsel for the parties. 7. I do not find any merit in the submission of the learned counsel for the appellants. It is clear from the records that the appellants have been duly served and they were represented through a counsel and they have filed their written statement. In view of this, it cannot be said that they were not aware of the proceedings. In view of this, there is no merit in the contention of the learned counsel for the appellants and the application is liable to be dismissed. 8. Accordingly, it is dismissed and consequently the appeal is also dismissed. 9. Appeal dismissed.