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2015 DIGILAW 1114 (KAR)

Sadashiv v. Rajeshwari

2015-09-22

B.VEERAPPA

body2015
JUDGMENT 1. This is a 1st defendant’s Regular Second Appeal against the judgment and decree dated 11.11.2013 made in RA No.33/2012 on the file of the Senior Civil Judge, Hukkeri, dismissing the appeal on the ground of delay as well as on merits, confirming the judgment and decree of the trial court dated 16.09.2011 made in O.S. No.199/2009, on the file of the Civil Judge, Sankeshwar, decreeing the suit of the plaintiff declaring that the plaintiff is entitled to 1/3rd share in the suit schedule properties and separate possession by metes and bounds. 2. Respondent No.1, who is the plaintiff in the trial court, filed the suit for partition and separate possession against the defendants contending that the suit schedule properties are ancestral joint family properties and the deceased Bhimagouda was having four children, namely, the defendant No.2—Mahadev, defendant No.1—Sadashiv, defendant No.3— Ramagouda and the plaintiff—Smt.Rajeshwari. Bhimagouda’s wife Parubai @ Parvati is no more. Defendant No.1/Sadashiv was given in adoption under a registered adoption deed dated 02.09.1968 to Balagouda Jyoteppa Patil and Gangubai Balagouda Patil of Solapur and therefore, he has lost all his rights in the suit properties. The suit properties were the properties of Parubai @ Paravati’s father Babu Patil and he was in possession and cultivation of the said lands during his lifetime. The name of his wife Savubai and his daughter Parubai @ Paravati were entered in the revenue records in respect of the suit schedule properties. During the old age of Savubai, she had given a Waradi to the revenue officials to enter the name of her daughter Parubai @ Parvati. Therefore, her name was entered in the revenue records in diary No.5122 on 12.08.1977. Subsequently, Parubai @ Parvathi died on 02.06.2009. When the plaintiff and defendant Nos.2 and 3 tried to enter their names in respect of the suit properties as the legal representatives of Parubai @ Parvathi, they found that on 12.08.1977, defendant No.1/Sadashiv had given a Waradi said to have been given by Parubai @ Parvathi and created revenue records in respect of the suit properties in his name in diary No.5125. Defendant No.1 has no right in respect of the suit properties as he has been given in adoption to another family. Defendant No.1 has no right in respect of the suit properties as he has been given in adoption to another family. Now, on the basis of the revenue entry made in the name of defendant No.1, he is trying to sell the properties, thereby depriving the legitimate share of the plaintiff and defendant Nos.2 and 3. Therefore, she has filed the present suit. 3. Defendant No.1 appeared through his counsel, but has not filed any written statement. Defendant No.2 filed his written statement. Defendant No.3 was placed ex parte’. Defendant No.2 has not disputed the claim of the plaintiff and supported the case of the plaintiff. 4. Based on the above pleadings the trial court framed the following issues: (i) Whether the plaintiff is entitled for the reliefs as claimed in the suit properties? (ii) What order or decree? 5. In order to establish the plaintiff’s case, the plaintiff examined as PW1 and marked documents Exs.P1 to 16. The defendants have not adduced any oral evidence nor produced any documents. 6. After considering both oral and documentary evidence on record, the trial court recorded a finding that the plaintiff is entitled to 1/3rd share in the suit properties. Accordingly, the suit came to be decreed, granting 1/3rd share to the plaintiff in the suit properties and its separate possession by metes and bounds. 7. Aggrieved by the said judgment and decree of the trial court, defendant No.1 filed an appeal in R.A. No.33/2012 before the Senior Civil Judge, Hukkeri, who after hearing both parties passed the impugned judgment and decree dated 11.11.2013, has dismissed the appeal both on the ground of delay as well as on merits. Hence, the present second appeal is filed. 8. I have heard the learned counsel for the parties to the lis. 9. Sri.Sachin S.Magadum, learned counsel for the appellant, has strenuously contended that the lower appellate court, while deciding the appeal on the ground of delay, it has no jurisdiction to decide the case on merits. Therefore, he sought to set aside the judgment and decree of the lower appellate court. 10. 9. Sri.Sachin S.Magadum, learned counsel for the appellant, has strenuously contended that the lower appellate court, while deciding the appeal on the ground of delay, it has no jurisdiction to decide the case on merits. Therefore, he sought to set aside the judgment and decree of the lower appellate court. 10. Per contra, Sri.Dinesh M. Kulkarni, learned counsel for respondent No.1, has vehemently contended that in the suit filed by the sister for partition and separate possession, if the appellant/defendant No.1 has not filed any written statement, even though he was given in adoption to one Balgouda Jyoteppa Patil as long back as on 02.09.1968. He has not crossexamined the plaintiff, neither adduced any oral evidence nor produced any documentary evidence. Defendant No.2 filed the written statement and supported the case of the plaintiff and the appellant, absolutely, has no case on merits and he is dragging the matter unnecessarily and harassing the plaintiff. He has also contended that in view of the provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), the appellant is not entitled to any share in the properties. Therefore, he sought to dismiss the appeal. 11.This court while admitting the appeal, has framed the following substantial question of law: “Whether the lower appellate court is justified in dismissing the appeal on the ground of delay as well as on merits of the case?” 12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record. 13. It is not in dispute that the 1st respondent filed the suit for partition and separate possession contending that the suit properties are the joint family properties and the plaintiff is entitled to 1/3rd share. The averments made in the plaint are not denied by the appellant, who is the defendant before the trial court, by filing any written statement, nor cross-examined the plaintiff. He has neither adduced any oral evidence in support of his case nor produced any documents. Considering the entire material on record, the trial court recorded a specific finding that the plaintiff is a member of the joint family. The suit properties are the joint family properties. He has neither adduced any oral evidence in support of his case nor produced any documents. Considering the entire material on record, the trial court recorded a specific finding that the plaintiff is a member of the joint family. The suit properties are the joint family properties. Therefore, she is entitled to 1/3rd share between the plaintiff, defendant No.2 and 3, holding that defendant No.1 is not entitled to any share, since he was given in adoption on 02.09.1968. Accordingly, the suit came to be decreed. 14. It is also not in dispute that while filing the appeal by the appellant before the lower appellate court in R.A. No.33 of 2012, there was delay of 190 days in preferring the appeal. The lower appellate court, while considering the application IA No.1, rejected the application holding that the appellant has not made out any sufficient ground to condone the delay, consequently, the appeal was also rejected. However, while rendering the judgment, the lower appellate court has discussed the case on merits and held that, defendant No.1 being the brother of plaintiff and defendant Nos.2 and 3, he was given in adoption to another family. It is not disputed by the appellant/defendant No.1. Under the circumstances, he loses his right over the properties of genetic family. The suit properties being belonging to genetic family. Such being the case, if I.A. is not allowed, no hardship whatsoever would be caused to the appellant / defendant No.1. Under the circumstances, the appellant / defendant No.1 miserably failed to make out sufficient grounds to condone the delay caused in preferring the appeal. 15. This Court, while considering the provisions of Order XLI Rule 3A(1) read with Section 100 of the Code of Civil Procedure, in the case of MARAPPA AND OTHERS Vs. THIMMEGOWDA AND ANOTHER, reported in 1981 (2) Kar.L.J. 73 , has specifically held as under: “6. As noticed earlier, the learned Civil Judge first dealt with the merits of the case and then considered I. A. No.I and held that defendant No.1 had not made out sufficient cause for condoning the delay. As the learned Civil Judge has dealt with the appeal on merits and has dismissed the same on merits, whatever may be his view on I. A. No. I, this appeal has necessarily to be decided on merits within the limited scope and ambit of Section 100 of the Code. As the learned Civil Judge has dealt with the appeal on merits and has dismissed the same on merits, whatever may be his view on I. A. No. I, this appeal has necessarily to be decided on merits within the limited scope and ambit of Section 100 of the Code. But, at the same time, it is necessary to point out that the procedure adopted by the learned Civil Judge is somewhat strange and is illegal. Whenever an application for condonation of delay is made in any legal proceeding, it is imperative for the Court to decide the application in the first instance and then take up the appeal or application on merits. If the Court finds that the party had not made out sufficient cause for condoning the delay, the application made for condoning the delay has to be rejected which necessarily results in the dismissal of the appeal or application filed before Court. I am somewhat surprised that Sri. S. V. Tilgul, an experienced Civil Judge who has now been promoted as a District Judge, should have committed such a simple mistake. Apart from this, the allegations made accompanying I.A. No. 1 filed by defendant No. 1 in which he had asserted that he was unwell in proof of which he had even produced a medical certificate, has not been controverted by the plaintiff by filing any counter affidavit or objections to the said application. In these circumstances, the learned Civil Judge was not even justified in holding that defendant No.1 had not shown sufficient cause for condoning the delay. But, as nothing turns on that finding of the learned Civil Judge, I do not propose to say anything further on the same.” 16. The said view is also affirmed by this Court in a subsequent decision, in MARIGOUDA CHANABASAPPA MARIGOUDAR Vs. SATTEPPA VEERAPPA KOUJALAGI, SINCE DECEASED BY HIS LRs., dated 06.02.2014 in Regular Second Appeal No.5527 of 2009(SP), which reads as under: “14. After perusing the impugned judgment passed by the First Appellate Court, it appears that, though the appeal is dismissed holding that I.A.IV filed under Section 5 of the Limitation Act is rejected, the learned Judge has considered the aspect of maintainability of the appeal also. After perusing the impugned judgment passed by the First Appellate Court, it appears that, though the appeal is dismissed holding that I.A.IV filed under Section 5 of the Limitation Act is rejected, the learned Judge has considered the aspect of maintainability of the appeal also. The Court before which an application will be filed under Section 5 of the Limitation Act, especially in regard to the condonation of delay in filing of the appeal is concerned, the Court has to show whether the cause shown for condonation of delay is acceptable or not. Considering the question of maintainability or merits will arise only after the delay is condoned and appeal is taken on file. The Court will not get jurisdiction to give its findings on the maintainability of an appeal or about the merits, unless the appeal is taken on file by condoning the delay.” 17. In view of the provisions of Order XLI Rule 3A(1) read with Section 100 of the Code of Civil Procedure, 1908, the impugned judgment and decree of the lower appellate court cannot be sustained in law. The lower appellate court should first decide the application for condonation of delay. If it is satisfied, after condoning the delay, shall decide the case on merits. While considering the application for condonation of delay, the lower appellate court has no jurisdiction to decide the case on merits. The method often adopted by the courts below unnecessarily drag the parties from court to court and delayed the proceedings. Therefore, it is appropriate for the lower courts in the subordinate judiciary to consider the application for condonation of delay first. On such consideration, in case, sufficient cause is not assigned by the concerned party for condonation of delay, dismiss the appeal only on the ground of delay and latches. If the appellate court or the lower court is satisfied with sufficient cause, they have to condone the delay and should not dismiss the case on technicality and when the substantial justice and technical considerations are fitted against each other, then substantial justice should be done between the parties. It must be grasped that judiciary is respected not on account of its powers to legalise injustice on technical grounds, but it is capable of removing injustice and is capable to do so. It must be grasped that judiciary is respected not on account of its powers to legalise injustice on technical grounds, but it is capable of removing injustice and is capable to do so. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963, in order to enable the Courts to do substantial justice to the 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 sub-serves the ends of justice—that being the life purpose for the existence of the institution of Courts and the approach of the court to be pragmatic and not pedantic— substantive rights of the parties cannot allowed to be defeated on technical grounds by taking hypertechnical view of selfimposed limitations. 18. In view of the same, the court should consider the application to decide first on delay. If the Court is not satisfied with the cause for condoning the delay, the court has no jurisdiction to decide the case on merits. In view of the reasons stated above, the substantial question of law framed is answered in the negative holding that the lower appellate court is not justified in dismissing the appeal on the ground of delay as well as on merits. 19. In view of the aforesaid reasons, this Regular Second Appeal is allowed. The judgment and decree of the lower appellate court dated 11.11.2013 made in RA No.33/2012 on the file of the Senior Civil Judge, Hukkeri, is hereby set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law. 20. The lower appellate court is directed to consider the application filed under Order XLI Rule 3A(1) and if the Court is satisfied, then condone the delay and if not satisfied, it can decide the application and cannot decide the case on merits, if the delay is not condoned. The lower appellate court is also directed to decide the application, as well as the appeal, independently without being influenced by any of the observations made by this court herein above. Both parties are directed to appear before the lower appellate court on 15.10.2015. Ordered accordingly.