- 1 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2115 OF 2016 (PAR) BETWEEN: 1. SMT CHANDRIKA W/O LINGARAJ D/O A B VIJAYAKUMAR AGED ABOUT 40 YEARS, OCC: HOUSE WIFE, R/AT NO.1184, NEAR KSRTC BUS STAND MADIKERI, KODAGU DISTRICT 2. SMT RADHIKA W/O RUDRESH NANDA D/O A B VIJAYAKUMAR AGED ABOUT 36 YEARS, OCC: HOUSE WIFE, R/AT HOUSE NO.327 RAJATADRI, TALAKAVERI LAYOUT AMRUTHAHALLI, BANGALORE 560092 3. MR A V SHANTESH S/O A B VIJAYAKUMAR AGED ABOUT 33 YEARS, OCC: PRIVATE EMPLOYEE R/AT HOUSE NO.327 RAJATADRI, TALAKAVERI LAYOUT AMRUTHAHALLI, BANGALORE 560092. …APPELLANTS (BY SRI. MITHUN GERAHALLI, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 AND: 1. SRI A B VIJAYAKUMAR S/O LATE A N BASAPPA AGED ABOUT 65 YEARS, R/O NO.1184, NEAR KSRTC BUS STAND MADIKERI 571201 KODAGU DISTRICT 2. M E ISMAIL S/O M H IBRAHIM AGED ABOUT 47 YEARS, 3. SMT M E BALKEES W/O M H IBRAHIM AGED ABOUT 45 YEARS, RESPONDENT Nos. 2 AND 3 ARE R/O NO.3/53 GANAPATHY STREET MADIKERI 571201 KODAGU DISTRICT …RESPONDENTS THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.08.2013 PASSED IN R.A. NO.39/2012 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT JUDGE, KODAGU, MADIKERI. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.03.2012 PASSED IN O.S. NO. 20/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI. THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 3 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 ORAL JUDGMENT This Regular Second Appeal is filed by the appellants, challenging the judgment, and decree dated 20.08.2013 passed in R.A.No.39/2013 by the learned I Additional District Judge, Kodagu, at Madikeri, and the judgment, and decree dated 30.03.2012 passed in O.S.No.20/2010 by the learned Senior Civil Judge and CJM, Madikeri 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this Appeal are as follows: The plaintiffs filed the suit against the defendants for partition and separate possession regarding the suit schedule property. It is the case of the plaintiffs that, defendant No.1 is the plaintiff’s father. One Rudrappa was the original propositus of the family. The suit property originally belonged to Rudrappa, as he had purchased the - 4 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 said property for a valuable consideration. It is contended that, Rudrappa entered into a partition in the form of family arrangement under the registered deed due to the disputes having arose among the family members. It is further contended that, defendant No. 1, the kartha and head of the family, filed an application to transfer khatha in his name. Accordingly, Khatha was transferred in his name. It is contended that, from the date of partition mentioned above, the plaintiffs and defendant No.1 are in the joint possession and enjoyment of the property. The relationship between the plaintiffs and defendant No.1 began to strain. Defendant No.1 sold the suit property without any family and legal necessity, behind the back of the plaintiffs to defendants No. 2 and 3. The said sale is not binding on the plaintiffs’ share. The plaintiffs demanded partition and separate possession, but defendant No.1 refused to effect the partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. - 5 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 4. Pursuant to the service of suit summons, the defendants remained unrepresented, they were placed exparte. 5. The Trial court, based on the plaintiff’s pleadings, framed the relevant issues. 6. The trial court, after recording the evidence and on the assessment of oral and documentary evidence, dismissed the suit of the plaintiff vide judgment dated 30.03.2012. The plaintiffs, aggrieved by the judgment and decree passed by the trial court, preferred an appeal in R.A.No.39/2013 before the learned I Additional District Judge, Kodagu, at Madikeri. The first appellate court, on reassessment of oral and documentary evidence, dismissed the appeal, and confirmed the judgment passed by the trial court, vide judgment dated 20.08.2013. The plaintiffs, aggrieved by the impugned judgments and decrees passed by the courts below, filed this regular second appeal along with an application, I.A.No.1/2016, for condonation of delay in filing the instant appeal. - 6 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 In support of an application in I.A.No.1/2026, Appellant No. 3/Plaintiff No. 3 filed an affidavit stating that, the plaintiffs had filed this appeal challenging the impugned judgments, and that the grounds raised in the appeal memo be read, and considered as part and parcel of the affidavit to avoid repetitions. It is stated that, after the filing of the appeal in R.A.No.39/2013, the plaintiffs shifted to Bangalore. Defendant No.1, the plaintiffs’ father, is an age old person who was admitted, and treated at Sri Satya Sai Institute of Higher Medical Sciences and also at Sri Jayadeva Hospital, Bengaluru, and he has been under treatment till today, since 2012. It is stated that, the appellants/plaintiffs are the only persons who care for their father, and they could not approach this Hon’ble court in time. It is also stated that, there was a gap in communication with their advocate, and appellant No.2/Plaintiff No.2 was a party to the case in M.C.No. 3047/2013 before the Family Court, Bangalore which is still pending. It is stated that, the dismissal of the first appeal came to their knowledge from their advocate, and - 7 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 upon the instructions of their advocate, they have filed the present appeal. Hence, they could not file the appeal within the stipulated time. The delay in approaching this Hon’ble Court is unintentional and for the bonafide mistake of the plaintiff Nos.1 to 3. Hence, there is a delay in filing the appeal, and accordingly, prays to condone the delay. 7. Heard the arguments of the learned counsel for the plaintiffs. 8. Learned counsel for the plaintiffs submits that, the plaintiffs had to take care of their age old father, who is a heart patient and under the treatment, since 2012. The plaintiffs learned about the dismissal of the first appeal, only when they received the information from their Advocate. Immediately, they obtained the relevant documents and made the financial arrangements. Thus, a delay has been caused in filing the appeal. He submits that, the plaintiffs have shown sufficient cause for not preferring the appeal within time. Hence, on these grounds, prays to allow I.A.No.1/2016. - 8 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 9. Perused the records, and considered the submissions of the learned counsel for the plaintiffs. 10. The plaintiffs filed a suit against the defendants for partition and separate possession. The trial Court dismissed the said suit vide judgment dated 30.03.2012. The plaintiffs, aggrieved by the judgment and preliminary decree, preferred an appeal in R.A.No.39/2012. The said appeal was disposed of vide judgment dated 20.08.2013. The plaintiffs did not file the present appeal well within the stipulated period of limitations. It is the case of the plaintiffs that, since their father is a heart patient and age old person, they had an obligation to look after him; if they approached the Hon’ble court, again their father would be put into trouble, both mentally and physically and hence, they could not concentrate on the case and in the meantime, there was a gap of communication, which was developed between them and their Advocate. Hence it is contended that they could not file the instant appeal within the period of limitation. The plaintiffs owe a duty to - 9 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 be vigilant of their case and are expected to be equally vigilant about judicial proceedings in the Court initiated at their instance. Admittedly, in the instant case, the plaintiffs, except contending about the ill-health of their father, have not shown any sufficient cause for condoning the delay of 1107 days in filing the appeal. The plaintiffs are negligent in filing the appeal. 11. The Court should bear in mind while exercising jurisdiction. It has the duty to protect the right of the citizen, but simultaneously, it has to keep itself alive to the primary principle that when an aggrieved person without reason approaches the Court, on their leisure or pleasure, the Court will be under a legal obligation to scrutinize, ‘whether the lis, which is at a belated stage, should be entertained or not?. It may be noted that delay comes in the way of equity. In certain circumstances, delay and laches may not be fatal, but in most circumstances, the inordinate delay would only invite disaster for the litigant who knocks at the door of the Court. Delay reflects - 10 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. The delay does bring in hazards and causes injury to the lis. A Court is not expected to give indulgence to such indolent persons - who compete with ‘Kumbhakarna’ or ‘Rip Van Winkle’. Thus, there is a delay in filing the appeal. Such an inordinate delay of 1107 days in filing the second appeal does not deserve indulgence. Hence, on the ground of delay and laches, the appeal is liable to be dismissed at the very threshold. The Hon'ble Apex Court, in the case of CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS VS. T.T.MURALI BABU reported in 2014(4) SCC 108, declined to condone the delay of four years in approaching the Court. The Hon'ble Apex Court in the case of MAJJI SANNEMMA @ SANYASIRAO VS. REDDY SRIDEVI & ORS., in Civil Appeal No.7696/2021 disposed of on 16.12.2021 relying on the judgment of the said Court in the case of BASAVARAJ AND ANOTHER VS. SPECIAL LAND - 11 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 ACQUISITION OFFICER reported in (2013)14 SCC 81 has observed as under: “The expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party.” It is further observed that, “Even though limitation may harshly affect the rights of a party but it has to be applied with all its rigour when prescribed by statute.” It is further observed that,- “In case a party has acted with negligence, lack of bonaf ides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions.” It is observed that, “Each application for condonation of delay has to be decided within the framework laid down by this Court”. It is further observed that, “If Courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of - 12 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 statutory principles and showing utter disregard to the legislature.” The Hon'ble Apex Court has declined to condone the delay of 1011 days in preferring the second appeal. Further, the Hon'ble Apex Court in the case of Lingeswaran Etc. vs. Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022 disposed of on 25.02.2022, held that when it is found that the delay is not properly explained, the application to condone the delay is required to be dismissed. The Hon'ble Apex Court declined to condone the delay of 465 days. 12. Considering the law declared by the Hon'ble Apex Court in the above cases, the plaintiffs have not shown sufficient cause to condone the delay of 1107 days in filing the second appeal. In view of the above discussion, I do not find any grounds to entertain I.A.No.1/2016 as there is an inordinate delay in filing the second appeal. - 13 - NC: 2025:KHC:9288 RSA No. 2115 of 2016 13. Hence, I proceed to pass the following : ORDER i) I.A.No.1/2016 is rejected; ii) Consequently, the appeal filed by the plaintiffs is dismissed. In view of the dismissal of the appeal, pending I.A, if any, does not survive for consideration, and is, accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RS