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2019 DIGILAW 1658 (KAR)

Kasturevva v. Bhimareddi

2019-07-11

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The plaintiffs being aggrieved by the Judgment and Decree dated 26.05.2011 passed in R.A.No.34 of 2010 by the Additional Senior Civil Judge, Gadag confirming the Judgment and Decree dated 09.07.2009 passed in O.S.No.9 of 2009 by the Principal Civil Judge (Jr.Dn) Gadag have filed this regular second appeal. 2. The parties are referred with their ranks before the trial Court. 3. The brief facts of the case are as follows : The plaintiffs filed O.S.No.9 of 2009 before the trial Court against the defendants seeking relief of declaration of easementary right and mandatory injunction. It is the case of the plaintiffs that the suit properties are bearing R.S.No.38/D measuring 2 acres 26 guntas which belongs to the plaintiffs and R.S.No. 38/2B measuring 5 acres 8 guntas belongs to the defendant No.1 and R.S.No.38/2A measuring 5 acres 20 guntas belongs to defendant Nos.2 and 3 situated at Sambhapur village, taluk Gadag. The plaintiffs have stated that the defendants are adjoining owners. The plaintiffs and defendants are owners and cultivators of their respective lands shown in the hand sketch map. Plaintiffs are cultivating 'ABCD' portion and defendant No.1 is cultivating the 'EFGA' portion and defendant No.2 is cultivating 'GHFI' portion and defendant No.3 is cultivating 'HBIJ' portion shown in the hand sketch map. Since more than 100 years the plaintiffs used to got to their land from Lakkundi - Adavisomapur road and turn towards western side of defendants land and turns at southern side and pass through the 'EA' road shown in the hand sketch map. The plaintiffs using the said way to reach their lands for carrying agricultural implements and bullocks etc. Now the defendants have started obstructing the plaintiffs in using 'EA' road. Therefore, the plaintiffs were constrained to file original suit for declaration of easementary right and mandatory and prohibitory injunction. 4. In response to the summons, the defendant No.1 appeared before the trial Court through his counsel, but did not file any written statement. The defendant Nos.2 and 3 remained absent and were placed ex-parte. The plaintiff No.2 was examined as PW-1 in support of their case and three documents were got marked as Ex.P-1 to Ex.P-3. 5. The trial Court after hearing the parties dismissed the plaintiffs' suit with costs. 6. The defendant Nos.2 and 3 remained absent and were placed ex-parte. The plaintiff No.2 was examined as PW-1 in support of their case and three documents were got marked as Ex.P-1 to Ex.P-3. 5. The trial Court after hearing the parties dismissed the plaintiffs' suit with costs. 6. The plaintiffs being aggrieved by the impugned Judgment filed R.A.No.34 of 2010 on the file of Additional Senior Civil Judge, Gadag along with I.A.No.1 under Order-XLI Rule-3A of the Code of Civil Procedure,1908 and Section 5 of the Limitation Act praying to condone the delay of 08 months 14 days in filing the appeal. It appears, the appellants have adduced oral evidence before the first appellate Court to explain the delay. The first appellate Court after hearing both the parties dismissed the I.A.No.1 and consequently, the appeal as barred by limitation. 7. The plaintiffs being aggrieved by the impugned Judgment and Decree passed by the first appellate Court have filed this regular second appeal. 8. The appeal has been admitted for consideration of the following substantial question of law : "Whether the lower appellate Court has committed an error in dismissing the appeal filed under Section 96 and under Order 41 Rule 1 of Civil Procedure Code as time barred in spited of sufficient cause for condonation of the delay of 08 months 14 days and thus the Judgment passed by the lower appellate Court has become perverse and illegal." 9. Heard the learned counsel for the appellants and respondents. 10. The learned counsel for the appellants relying on the Judgment in the case of Collector, Land Acquisition, Anantnag vs. Katiji, (1987) AIR SC 1353 and the Judgment of this Court in the case of Chidanandappa S/o.Annappa Road vs. Husensab S/o.Gokharasab Masapati, in R.S.A.No.5776/2013 decided on 15.07.2014 submitted that the first appellate Court ought to have taken liberal approach and condoned the delay in filing the appeal which was explained by adducing oral evidence of one of the appellants. 11. Per Contra, the learned counsel for the respondents submitted that even on the merits, appellants have no case and the delay is not properly explained before the lower appellate Court as such the impugned Judgment is sustainable. 12. 11. Per Contra, the learned counsel for the respondents submitted that even on the merits, appellants have no case and the delay is not properly explained before the lower appellate Court as such the impugned Judgment is sustainable. 12. It is seen from the record that one of the appellants was examined before the first appellate Court in support of I.A.No.1 filed under Order-XLI Rule-3A of C.P.C. and Section 5 of the Limitation Act. It is the case of the appellants that they are agriculturists and they have no other source of income except income from the agricultural land measuring 2 acres 26 guntas owned by them and due to paucity of rain in the previous years they could not get sufficient income even for their livelihood. It appears the cause shown by the appellants is sufficient and the first appellate Court ought to have considered the same and ought to have condoned the delay in filing the appeal. 13. This Court in the Judgment of CHIDANANDAPPA'S case stated supra relying on Judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition's case stated supra has held that the delay should be liberally construed, no pedantic approach in the matter of condonation of delay, which is the dictum of Hon'ble Supreme Court in the case stated supra. The plaintiffs in the present matter have sought for declaration in respect of easementary right. Under these circumstances this Court holds that the lower appellate Court has committed serious error in adopting a pedantic approach in dismissing the application for condonation of delay which is improper and incorrect, hence, the appeal filed by the appellants herein deserves to be allowed the substantial question of law is answered in the affirmative. The impugned Judgment and decree is liable to be set aside and the matter has to be remanded to the lower appellate Court for deciding the appeal on merits on condoning of the delay and allowing the application filed by the appellants before the first appellate Court. In the result, this Court proceed to pass the following : ORDER The Judgment and Decree dated 26.05.2011 passed in R.A.No.34 of 2010 by the Additional Senior Civil Judge, Gadag is set aside. In the result, this Court proceed to pass the following : ORDER The Judgment and Decree dated 26.05.2011 passed in R.A.No.34 of 2010 by the Additional Senior Civil Judge, Gadag is set aside. The matter is remanded to the lower appellate Court to restore the file since the delay is condoned subject to payment of costs of Rs.1,000/- before the lower appellate Court to be payable to the respondents on their appearance. The parties are directed to appear before the lower appellate Court on 19.08.2019. Thereafter, the lower appellate Court shall hear the parties and dispose of the appeal in accordance with law within a period of six months from the date of appearance of the parties. The parties are directed to bear their own costs.