Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 406 (KAR)

Usha v. Sharad since deceased by LRs

2010-03-29

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
JUDGMENT D.V. Shylendra Kumar, J.: These two appeals arise out of the common judgment and decree dated 29-9-2000 passed in OS No 144 of 1996, on the file of the Principal Civil Judge (Sr. Dn.), Belgaum. 2. While defendants 1 to 6 in the suit are in appeal in RFA No. 79 of 2001, plaintiffs 1 to 3 are in appeal in the other appeal in RFA No. 741 of 2001. RE: RFA No. 79 of 2001 3. RFA No. 79 of 2001 is for questioning, the judgment and decree of the Trial Court awarding 11/50th share to plaintiffs 1 to 3 put together. 4. Obviously the defendants are not keen to yield this extent of share in favour of plaintiffs 1 to 3 and have raised some grounds in support of the same in the memorandum of appeal. The defendants had set up the plea of partition and in support of this case had produced several documents including Ex.D1 to 19, sale deeds and municipal records written in Marathi language. It appears the defendants though sought to rely upon these documents before the Trial Court, did not choose to produce the translated versions of the same either in the official language of the State viz., Kannada or in English, the language used for Court transactions. 5. The defendants, who choose to file the appeal questioning the judgment and decree, though filed paper book before this Court. Here again, they have failed to produce translated versions of the documents in English language, but have adhered to the documents in Marathi language. 6. The registry on finding such a deficiency, had pointed it to the appellants and the matter had been listed before this Court on quite a few occasions and all occasions the appellants were granted time to file translated version etc. The last time the appeal had been listed for such purpose on 22-3-2010, the following order came to be passed: An appeal under Section 96 CPC by the defendants in as No. 144/1996 on the file of Principal Civil Judge (Sr.Dn.), Belgaum, are not keen to submit to the judgment and decree of the Trial Court for sharing, the suit schedule properties with the plaintiffs have come up in appeal to get over the decree for partition, wherein the plaintiffs numbering three had been given 11/50 share in the joint family properties. 2. 2. The appeal though is ready for hearing, the paper-books having been filed, it is the appellant not producing the translated version of Ex.D1 to D19 which is in Marathi language that has held up the hearing of this appeal. 3. Notwithstanding, Sri H.N. Gullaraddi, learned Counsel appearing for the appellant seeks a week's time to file translated copies of Ex.D1 to D19. Though we are not inclined to grant such time, in the ends of justice, we grant a week's time but subject to the term that the appellants pay costs of Rs.5,000/- in favour of respondents-2 and 3 by next week and if not paid the amount to be deposited before this Court. 4. List again for further orders on 29.03.2010. 7. Sri S.S. Patil, learned Counsel for the appellants submits today that the efforts on the part of the learned Counsel to get the translated copies of the documents from the appellants, particularly from the second appellant, who himself is an advocate by profession and conversant with both Marathi and Kannada languages, have not responded and in this helpless situation, learned Counsel wants to find a way out by filing a memo seeking for permission to retire from the case to relieve him of his appearance on behalf of the appellants. Such a memo is available on record. 8. Mr. Patil submits that he had personally served the intimation to the parties about the proposed retirement from the case; the appellants have not responded even at this stage and such notices have been sent by RPAD also. 9. Mr. Patil submits that notwithstanding his insistent efforts to get instructions from the appellants, particularly to get the translated copies of Ex.D1 to 19 and to place them before the Court, is not successful in his efforts and therefore prays for orders on the memo for retirement. 10. It is very obvious that the appellants are very lukewarm in prosecuting the appeal and if they do not respond to the Counsel's communications, the law will have to take its course. 11. 10. It is very obvious that the appellants are very lukewarm in prosecuting the appeal and if they do not respond to the Counsel's communications, the law will have to take its course. 11. Though this appeal is connected with the other appeal and arises from the common judgment passed in a suit for partition etc., we find in the wake of the total non-cooperative movement on the part of the appellants, the only way to deal with this appeal is to dismiss the appeal for non-prosecution, after levying exemplary cost of Rs 50,000/- [Rupees fifty thousand only] on the appellants. 12. We do so for the reason that the defendants, who had suffered a decree for yielding 11/50th share in the suit schedule properties and who have been doggedly prosecuting the appeal, have certainly developed a cold-feet and have very successfully avoided the fruits of judgment and decree of the Trial Court being realized by the plaintiffs in the suit. 13. Judicial proceedings are meant for redressing bona fide grievance and in a bona fide diligent manner. Judicial proceedings and Courts should not be misused or abused by unwilling litigants who are not ready to give a due share to other members of the joint family. 14. Just because the statute provides for first appeal under Section 96 CPC, it does not mean that every appeal filed under Section 96 either can be or should be dealt with in the same manner. Each appeal has to be dealt with on its merits. But, the present appellants have conveniently or deliberately avoided their appeal for being dealt with on merits, but they have kept away from the Court proceedings. Such misuse of Court proceeding and statutory provision should definitely to be discouraged. 15. While judicial time is not infinite and is very limited, litigations are many and so also cases. Unless judicial time is properly and in a judicious manner distributed amongst the litigants and the cases incidences like, the present appeal resulting in wastage of judicial time due to the misuse or abuse of Court proceedings will keep repeating and to discourage such a tendency, we are imposing the exemplary cost of Rs 50,000/-. Unless judicial time is properly and in a judicious manner distributed amongst the litigants and the cases incidences like, the present appeal resulting in wastage of judicial time due to the misuse or abuse of Court proceedings will keep repeating and to discourage such a tendency, we are imposing the exemplary cost of Rs 50,000/-. We also notice that the earlier cost of Rs 5,000/- imposed on the appellants while extending time for the appellants to file translated versions of the documents, ordered on 23-3-2010 is also not complied with and the amount is not paid by the appellants in favour of respondents 1 to 3. 16. Appellants, therefore, directed to pay earlier cost of Rs 5,000/- and present cost of Rs 50,000/- to the respondents 1 to 3 to be distributed amongst the respondents 1 to 3 equally. The appellants to deposit the costs before this Court within four weeks from today, failing which, the registry is directed to draw a decree including costs of amount of Rs. 55,000/-, to enable them to recover the same. 17. The appeal is dismissed with costs as indicated above. RE: RFA No 741 of 2001 18. In this appeal, the learned Counsel for the appellants is permitted to file amended cause title and accordingly, the amended cause title is filed and it is received on record. 19. There is a delay of 173 days in filing this appeal. The appellants have filed an application in IA-I of 2001 for condoning the delay in filing the appeal. Having regard to the facts and circumstances and accepting the reasons assigned in the accompanying affidavit, IAI/2001 is allowed and the delay in filing the appeal is condoned. 20. This appeal, in the normal course, should have kept in the company of RFA No 79 of 2001, as both appeals are directed against the common judgment and decree passed by the Trial Court. This appeal is by the plaintiffs in the suit and for only purpose of getting mesne profits, which, according to the appellants, has been incorrectly denied by the learned Judge of the Trial Court. 21. The appellant not being content with the share allotted in their favour i.e. 11/50th share in the suit schedule properties, are agitating, questioning the finding of the Trial Court on issue No 4, rejecting the claim for mesne profits and therefore, are before this Court in appeal. 22. 21. The appellant not being content with the share allotted in their favour i.e. 11/50th share in the suit schedule properties, are agitating, questioning the finding of the Trial Court on issue No 4, rejecting the claim for mesne profits and therefore, are before this Court in appeal. 22. We have heard Sri Jagadish Patil, learned Counsel for the appellants and perused the judgment under appeal and the records of the case. 23. While the plaint averments do pray for future mesne profits from the date of presentation of the plaint till decree, no further pleading supportive of this claim is forthcoming in the plaint and obviously no supporting evidence is let in. The Learned Judge of the Trial Court, in the absence of any plea or worthwhile evidence to support the plea, was helpless in quantifying or indicating as to in what manner the mesne profits are to be ascertained. 24. Perhaps, an enquiry could have been directed for ascertaining mesne profits, if the plaintiffs had indicated any measure of income, which was being received and utilized by the defendants. 25. On the other hand, we find that even as per plaint averments, the plaintiffs are blissfully in possession and enjoyment of the suit schedule properties and majority of them being agricultural lands. A glance at the cause title description of suit schedule properties shows that while most of the parties, whether plaintiffs or defendants, are residing in Mumbai, Belgaum, Madhya Pradesh, Kolhapur etc. and one house property is situate at Belgaum and agricultural lands are situate at Gadhinglaj Galuka village, Kolhapur district, Maharashtra State. It also appears second plaintiff is residing at this place and has been in management of agricultural lands. 26. If such is the factual position, if the plaintiffs themselves are in enjoyment of the suit schedule properties, there is no question of their asking the defendants to account for the mesne profits etc., and if at all a decree for mesne profits has to be passed, it will have to be against plaintiffs. It is open to them to account for mesne profits even without a decree, if they are so desirous, in favour of the defendants. Without prejudice to this right, this appeal, which is without any merit, is dismissed. RFA 79 of 2001 dismissed with costs. RFA 741 of 2001 dismissed.