Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 1037 (KAR)

Dundappa v. Yellawwa

2023-08-31

C.M.POONACHA

body2023
JUDGMENT : C.M. Poonacha, J. Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. The above second appeal is filed by the defendant No.6 under section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') challenging the judgment and decree dated 05.01.2019 passed in R.A.No.100/2017 by VIII Addl. District and Sessions Judge, Belagavi (hereinafter referred to as 'first appellate Court') and the judgment and decree dated 10.06.2015 passed in O.S.No.27/2014 by the Senior Civil Judge, Saundatti (hereinafter referred to as 'trial Court). 3. The geneology relevant to consider the case of the parties are as under: 4. The respondent No.1/plaintiff instituted a suit in O.S.No.27/2014 seeking for partition and separate possession. Defendants No.2, 4 and 5 are the brothers and defendant No.1 is the sister of the plaintiff. The sixth defendant is the purchaser of the suit property from the defendant No.5 having purchased the same for a sum of Rs. 1,90,000/- under a registered sale deed dated 21.02.2008. 5. The defendants No.2, 5 and 6 entered appearance through a counsel and defendants No.1, 3 and 4 were placed exparte before the trial Court. Consequent to the pleadings of the parties, the trial Court framed one issue for consideration. The plaintiff examined herself as PW-1 and Exs.P-1 to P-6 were marked in evidence. Defendant No.2 examined herself as DW-1, however, no documentary evidence was marked in evidence. The trial Court vide its judgment and decree dated 10.06.2015, decreed the suit of the plaintiff and passed the following order: "Suit of the plaintiffs and defendant No.2 is hereby decreed. Plaintiff and defendant No.2 each are entitled to 1/6th share in the suit property. Plaintiff and defendant No.2 shall be put in accordance with section 54 of CPC. Draw a preliminary decree accordingly." 6. Being aggrieved, the defendant No.6 preferred R.A.No.100/2017. The plaintiff and defendants No.1 to 4 entered appearance in the said appeal the above appeal, the defendant No.6 preferred I.A.No.1 under Order 41, Rule 3 (A) of CPC read with Section 5 of the Limitation Act to condone the delay in filing the appeal and I.A. under Order 41, Rule 27 read with section 151 of CPC seeking permission to produce a document. The first appellate Court by its judgment dated 05.01.2019, framed 4 points for consideration which read as follows: 1. The first appellate Court by its judgment dated 05.01.2019, framed 4 points for consideration which read as follows: 1. "Whether the IA No. 1 filed U/o 41 Rule 3(A) of CPC R/w Sec/ 5 of Limitation Act deserves to be allowed? 2. Whether the IA filed U/o 41 Rule 27 R/w section 151 of CPC is deserves to be allowed? 3. Whether the judgment and decree passed by the trial Court in O.S. No. 27/2014 dated: 10.06.2015 on the file learned Sr. Civil Judge, Saundatti, is requires to be interfered? 4. What Order?" 7. By its judgment, the first appellate Court answered the points No.1 to 3 in the negative and dismissed the appeal. Being aggrieved, the present second appeal is filed. 8. The substantial questions of law that would arise for consideration are that: 1) Whether the findings recorded by the First Appellate Court rejecting I.A.No.1 for condonation of delay is contrary to the facts and material available on record? 2) Whether the findings recorded by the First Appellate Court, dismissing the application filed under Order 41, Rule 27 of the C.P.C is contrary to settled proposition of law? 9. In order to consider the substantial questions of law a few factual aspects are required to be noticed. 10. In support of I.A No.1 filed before the First Appellate Court seeking for condonation of delay, the appellant has set out in detail that although he had entered appearance before the Trial Court, in view of the fact that attempts were being made to amicably resolve the matter by elderly persons, the said defendant had not been given instructions to his Advocate to prepare the written statement and since the attempts for settlement were proceeding, the defendant did not inform his Advocate regarding contesting the suit. He further stated that after the final decree proceedings were filed and after he heard regarding the decree passed by the Trial Court, he contacted his Advocate to file appeal before the First Appellate Court. It is forthcoming from the affidavit filed in support of the application for condonation of delay that the defendant No.6 was under the bonafide belief that the matter would be settled and hence did not pursue the matter to contest the proceedings before the Trial Court. 11. It is forthcoming from the affidavit filed in support of the application for condonation of delay that the defendant No.6 was under the bonafide belief that the matter would be settled and hence did not pursue the matter to contest the proceedings before the Trial Court. 11. It is necessary to note that the right of first appellant under section 96 of the C.P.C, is a valuable right and where under the First Appellate Court is required to re-appreciate both facts and law and render its decision. Admittedly, the delay in filing the appeal was a period of 01 year 08 months and 20 days and the reasons set out by the defendant No.6 was a valid one. Hence, the First Appellate Court ought not to have rejected the I.A No.1 filed for condonation of delay. 12. With regard to the application filed under Order 41, Rule 27 of the C.P.C, the additional document that was sought to be produced was the registered adoption deed dated 20.04.1978, under which the defendant No.5 was adopted by Balawwa, the wife of the propositus. It is the claim that the defendant No.5 who is the vendor of defendant No.6 is the adopted son of Balawwa was not considered either before the Trial Court or by the First Appellate Court. The First Appellate Court by noticing the application filed under Order 41, Rule 27 of the C.P.C., has recorded a finding that the said condition is not attracted. It is relevant to note under Order 41, Rule 27 (a)(aa) of the C.P.C., a party seeking to produce additional evidence is required to establish that notwithstanding the exercise of due diligence the said evidence could not be produced by him earlier. In the affidavit filed in support of the application, the defendant No.6 has set out the fact that since the written statement was not filed and since the attempts of settlement were being pursued, he did not file the written statement and hence, he did not have an opportunity to put forth the contention regarding the adoption and produce the copy of the adoption deed. 13. It is forth coming from a perusal of the grounds urged in the memorandum of first appeal filed before the First Appellate Court, that contentions regarding adoption has also been put forth before the First Appellate Court. 13. It is forth coming from a perusal of the grounds urged in the memorandum of first appeal filed before the First Appellate Court, that contentions regarding adoption has also been put forth before the First Appellate Court. In view of the aforementioned, the findings recorded by the First Appellate Court to dismiss the application filed under Order 41, Rule 27 are also erroneous and is liable to be interfered with. 14. In view of what is stated above, the substantial questions Nos.1 and 2 framed for consideration are answered in the affirmative. 15. The delay in filing the first appeal by the defendant No.6 is required to be condoned. However, the hardship caused to the plaintiff is required to be kept in mind and hence, the delay is required to be condoned on certain conditions. 16. In view of the aforementioned, the following order is passed. ORDER i) The above appeal is Allowed. ii) The Judgement and decree dated 05.01.2019 passed in R.A.No.100/2017 by the Court of the VIII Additional District and Sessions Judge, Belagavi is set aside. iii) I.A.No.1 filed in R.A.No.100/2017 by the appellant seeking to condone the delay in filing the appeal of 01 year 08 months and 20 days is condoned subject to the appellant paying cost of Rs. 25,000/- to the respondent No.1/ plaintiff on or before the date of appearance before the First Appellate Court. iv) The parties to appear before the First Appellate Court on 04.10.2023 without the requirement of any further notice being issued in this regard. v) The First Appellate Court shall consider the appeal on merits as also the application under Order 41, Rule 27 of the C.P.C., on its merits and adjudicate the case of the parties in accordance with law.