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2020 DIGILAW 422 (KAR)

DEVAMMA W/O LATE NANJAIAH v. SANNATHAYAMMA

2020-02-13

NATARAJ RANGASWAMY

body2020
JUDGMENT : 1. This regular second appeal is filed by the defendants in O.S.No.865 of 1995 challenging the judgment and decree dated 19th December, 1995 as well as the final decree proceedings in F.D.P.No.14 of 2000. The appeal filed by the appellants before the First Appellate Court in R.A.No.413 of 2011 was rejected in view of the dismissal of an interlocutory application for condonation of delay. 2. For the sake of brevity and easy understanding, the parties in this judgment are referred to as they were arrayed before the Trial Court. The appellants herein were defendants while the respondents were plaintiffs before the Trial Court. 3. The case has a chequered history as is evident from the judgment of the First Appellate Court. The plaintiffs filed O.S.No.868 of 1995 for partition and separate possession of the share of the plaintiffs in the suit property bearing khatha No.138 (new khatha No.82) situated at Mysuru Village. The said suit was decreed exparte on 19th December, 1995. The plaintiffs filed F.D.P.No.14 of 2000 on 16th December, 2000. Long thereafter, the defendants filed Misc.No.14 of 2001 to set aside the exparte judgment and decree which was dismissed for non-prosecution. Again, the defendants after long lull, filed Misc.No.1 of 2003 under Order 9 Rule 9 of the Code of Civil Procedure, 1908, which too was dismissed on 22nd November, 2006. The final decree proceedings initiated by the plaintiffs gained steam and the final decree was drawn on 22nd March, 2010. A Court Commissioner was appointed for division of the properties and at that point in time, the plaintiffs filed an appeal in R.A.No.413 of 2011 not only challenging the exparte judgment and decree in O.S.No.868 of 1995 but also the final decree drawn in F.D.P.No.14 of 2000. 4. It is stated at the Bar that after the first appeal was filed, the plaintiffs have conveyed a portion of the suit schedule property in terms of a Sale Deed dated 22nd October, 2012 to Smt. Jyothi. 5. Since the appeal before the First Appellate Court was filed belatedly, an application was filed for condonation of delay of 360 days in filing the appeal. The delay was reckoned from the date of drawing up of the final decree till the filing of the appeal. 5. Since the appeal before the First Appellate Court was filed belatedly, an application was filed for condonation of delay of 360 days in filing the appeal. The delay was reckoned from the date of drawing up of the final decree till the filing of the appeal. However, the appeal before the First Appellate Court was not only against the final decree but also against the preliminary decree passed in O.S.No.868 of 1995. It is not known as to why the defendants did not feel it appropriate to seek condonation of delay from 19th December, 1995 till the year 2011 when the first appeal was filed. Consequently, no fault could be found from the First Appellate Court. 6. Though the conduct of the defendants/ appellants do not evince satisfactory proof that they were bonafide in defending the proceedings, yet we cannot lose sight of the fact that the First Appellate Court was the last Court of fact and the attempts of the defendants to assert their claim over the suit property, must be given a Forum. 7. We cannot also lose sight of the fact that much water has flown from the date of the preliminary decree till the drawing up of the final decree and the handing over of the respective shares of the plaintiffs. Therefore, in order to balance by not disturbing the final device drawn equities, it is felt appropriate that the judgment of the First Appellate Court in R.A.No.413 of 2011 is set aside and an opportunity is given to the defendants to contest the preliminary decree by producing material evidence before the First Appellate Court. Hence the order of the dated 27.03.2012 in R.A.No.413/2011 is set aside and remanded to the Principal Civil Judge (Sr.Dn.) and CJM, Mysuru for reconsideration. This however cannot go without imposing punitive costs in view of the long drawn litigation from the year 1995 till date, which must have definitely involved substantial expenditure to the plaintiffs. 8. Therefore, it is felt appropriate that the plaintiffs be mulcted with costs of Rs.50,000/(Rupees Fifty Thousand only). The parties shall appear before the First Appellate Court on 24th March, 2020. The defendants/appellants shall pay the cost of Rs.50,000/(Rupees Fifty Thousand only) to the plaintiffs/ respondents before the First Appellate Court. 8. Therefore, it is felt appropriate that the plaintiffs be mulcted with costs of Rs.50,000/(Rupees Fifty Thousand only). The parties shall appear before the First Appellate Court on 24th March, 2020. The defendants/appellants shall pay the cost of Rs.50,000/(Rupees Fifty Thousand only) to the plaintiffs/ respondents before the First Appellate Court. After such costs are paid, the defendants shall place on record all documentary evidence in support of their claim and also file their written statement before the First Appellate Court. It is open to the plaintiffs to file necessary rejoinder, objections or applications, etc., if found necessary. The First Appellate Court may frame issues and record evidence of the plaintiffs and defendants and dispose off the appeal within an outer limit of six months from 24th March, 2020. If the defendants are successful in establishing that they have a substantial defence in the suit, the First Appellate Court may only then over turn the judgment and decree of the Trial Court. The First Appellate Court is requested to take the appeal on a day-to-day basis, if not otherwise inconvenient to it and dispose off the appeal within the time stipulated. Accordingly, the appeal stands disposed off.