- 1 - RSA No. 5152 of 2010 RESERVED ON : 11.09.2025 PRONOUNCED ON : 19.09.2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO.5152 OF 2010 BETWEEN: VITHAL S/O. REVAPPA REBANNAVAR AGE: 27 YEARS, OCC: STUDENT AND AGRICULTURE, R/O: HIRENANDI, TQ: GOKAK, DIST: BELGAUM. …APPELLANT (BY SMT. POOJA KULKARNI, ADVOCATE FOR SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. DADAPPA S/O. MAHADEVA CHIKKODI SINCE DECEASED REPRESENTED BY LRS 1A) SMT. NANDA W/O. APPASAHEB RAJAMANE, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: HANIMANAL, TAL: GADAHINGLAJ, MAHARASHTRA-416501. 1B) SMT. INDUMATI W/O. PRAKASH NARASHETTI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: KUPPANAWADI, POST: KOTHALI, TAL: CHIKKODI, DIST: BELAGAVI-591287. …RESPONDENTS (BY SRI. SANJAY S. KATAGERI, ADVOCATE FOR R1(A) AND R1(B)) THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED:30.01.2009 PASSED IN R.A.NO.30/2004 ON THE FILE OF THE PRL. CIVIL JUDGE MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.19 15:12:42 +0530 - 2 - RSA No. 5152 of 2010 (SR.DN.) GOKAK, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT DATED:16.06.2001 AND THE DECREE PASSED IN O.S.NO.284/1993 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) GOKAK, DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION. IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING BEEN HEARD AND RESERVED ON 11.09.2025 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The appellant, who is defendant before the trial Court, has preferred this second appeal against the order dated 30th January, 2009 passed in Misc. No.30 of 2004, by the Principal Civil Judge (Sr.Dn.), Gokak on the Application filed under Section 5 of Limitation Act (for short “the first appellate Court”). 2. For the sake of convenience, the parties herein are referred to as per their status and rank before the first appellate Court. 3. Brief facts leading to this appeal are that the plaintiff filed Suit for declaration and injunction in respect of suit schedule property on the basis of the Will said to have been executed by one Smt. Satyavva w/o Ramanna Babanna Baddi. Though defendant has appeared before the trial Court through his - 3 - RSA No. 5152 of 2010 Counsel, but has not filed written statement. After recording the evidence of PW1 and 2 and production of 28 documents which are marked as Exhibits P1 to P 28, suit came to be decreed with costs vide Judgment dated 16th January, 2001. Being aggrieved by this Judgment and decree, the appellant-Vittal Revappa Rebannavar who is the grandson of defendant-Bhimappa Sangappa Arabannavar has filed appeal and along with appeal he has filed Application under Section 5 of Limitation Act to condone the delay in filing the appeal, which came to be registered as Misc.No.30 of 2004. The appellant examined himself as PW1 and on closure of appellant’s side evidence, respondent has adduced his evidence as RW1 and marked three documents as Exhibits R1 to R3. Having heard the arguments on both sides, the first appellate Court dismissed the Application. Being aggrieved by the said dismissal of Application, appellant has preferred this second appeal. 4. This Court, vide order dated 9th September, 2025, formulated the following substantial questions of law: i. Whether the first appellate Court, i.e. the Principal Civil Judge (Sr.Dn.), Gokak was justified in rejecting the Application fight under - 4 - RSA No. 5152 of 2010 Section 5 of the Limitation Act, while preferring the Regular Appeal? ii. What order or decree? 5. Smt. Pooja Kulkarni appearing on behalf of Sri Dinesh M. Kulkarni, learned counsel appearing for the appellant, would submit that the impugned order passed by the first appellate Court is not in accordance with law. She would further submit that the first appellate Court recorded evidence of PW1 on 7th April, 2001 and without posting the case for further evidence of PW2, directly posted the case for argument on 16th June, 2001 and pronounced the Judgment on the same day. Hence, there is no fair trial before the trial Court. Though the appellant has placed sufficient cause to condone the delay, the first appellate Court has not considered the same and rejected the Application. On all these grounds, it was sought to allow the appeal. To substantiate her arguments, the learned Counsel placed reliance on the following judgments: 1. MOHAN KUMAR v. STATE OF MADHYA PRADESH AND OTHERS - (2017)4 SCC 92; 2. SAINIK SECURITY v. SHEILA BAI AND OTHERS - (2008)3 SCC 257; - 5 - RSA No. 5152 of 2010 3. UMMER v. POTTENGAL SUBIDA AND OTHERS - (2018)15 SCC 127; 4. RANGAPPA AND OTHERS v. NAGAPPA AND OTHERS - ILR 2016 KAR 4463; 5. LEELA DEVI w/o ABASAAB BHOSALE AND ANOTHER v. NARAYAN S/O GUNDU JHADHAV AND ANOTHER - 2017(3) AKR 590; 6. JEGANNATHAN v. RAJU SIGAMANI AND ANOTHER (2012)5 SCC 540; 7. CORPORATION OF MADRAS AND ANOTHER v. M PARTHASARATHY AND OTHERS - AIR 2018 SC (CIVIL) 3006; 6. As against this, Sri Sanjay S. Katageri, learned Counsel appearing for respondents would submit that the first appellate Court has appreciated the evidence on record in accordance with law and facts, and absolutely there are no grounds to interfere with the impugned order passed by the first appellate Court and accordingly, sought for dismissal of the appeal. 7. I have examined the materials placed before me. The plaintiff has filed suit for declaration and injunction in respect of the suit property on the basis of registered Will dated 25th November, 1987. Though the defendant has appeared through his Counsel, but has not filed written statement. After recording the evidence, the trial Court has decreed the suit in favour the plaintiff. Being aggrieved by the Judgment and decree, the - 6 - RSA No. 5152 of 2010 present appellant preferred Appeal under order XLI Rule 1 of Code of Civil Procedure and along with appeal, he has filed Application under Section 5 of Limitation Act to condone the delay in filing the appeal. The appellant has filed affidavit along with Application in which he has stated that his grandfather Bhimappa was the defendant in OS No.284 of 1983. His father died prior to the death of his grandfather. After the death of grandfather, he has succeeded to the suit properties left by his grandfather. He has got right, title and interest in the suit properties. Hence, he approached the revenue authorities for effecting varasa. At that time, he came to know about the disposal of the suit and passing of the judgment and decree and after obtaining the certified copies of the judgment and decree, he has preferred this second appeal. On all these grounds, it is sought to allow the application. 8. The respondent appeared before the first appellate Court and filed detailed objection denying the averments made in the Application and also the grounds sworn in the affidavit. It is contended that there is a delay of three years in approaching the Court and there are no sufficient cause to condone the abnormal - 7 - RSA No. 5152 of 2010 delay. On all these grounds, it was sought to dismiss the application. 9. To substantiate the case of the appellant, he himself is examined as PW1. No documents were marked on his behalf. On closure of appellant’s side evidence, respondent has adduced his evidence as RW1 and marked three documents as Exhibits R1 to R3. Having heard on both sides, the first appellate Court dismiss the application. While dismissing the application, the first appellate Court has assigned reasons as under: “7) Point 1: Looking to the contentions of both the parties and the judgment and decree passed by the Trial Court the present respondent and another filed O.S.No.284/1993 against the grandfather of petitioner namely Bhimappa Sankappa Arbannavar for declaration and injunction in respect of suit schedule properties, "The suit was instituted before the Trial Court on 17.8.1993 and it was tried for 7 years and 10 months, Before the Trial Court the grandfather of the petitioner Bhimappa appeared before the Trial Court through his learned counsel, but he has not filed any W.S. denying the claim of the plaintiffs. Then the learned Trial Judge after recording the evidence of plaintiffs decreed the suit on 10.6.2001. Looking to the documents produced by the respondent before this court, Ex.R1 is the death certificate of Bhimappa who died on 5.6.2003 at Kadatu village in Soundatti Taluka. As per Ex.R1 the grandfather of petitioner died after nearly two years after - 8 - RSA No. 5152 of 2010 the judgment and decree passed in the original suit. Deceased Bhimappa though appeared before the Trial Court in the original suit has not filed any W.S. for a period of 7 years and 10 months. Even after Judgment and decree passed in the suit he has not challenged the same for a period of Iyear-11months-20days. He died without challenging the judgment and decree passed against him during his lifetime. After the death of deceased Bhimappa the present petitioner who is claiming to be a grandson has challenged the judgment and decree after 10 months after the death of Bhimappa. Ex.R2 is the mutation entry dtd.21.5.2002 passed by the revenue authority to enter the names of plaintiffs. The names of the plaintiffs are mutated two years prior to the filing of the present application. Ex.R3 is the Record of Right of Sy.No.319 for the year 2003-04. As seen from the records there is delay of two years ten months. 8) Looking to the evidence of PW.1 he has deposed his evidence stating that his father pre-deceased his grandfather and after the death of his grandfather he approached the revenue authorities for mutation of names, at that time he came to know about the judgment and decree passed in the suit. Further he has deposed that then he approached the counsel and obtained the certified copy and preferred the appeal. Then he has deposed that he has got fair chance of Success and respondent has no right in the property. Further he has deposed that he would be put to irreparable loss if the delay is not condoned and respondent will not be put to any loss. Considering his entire evidence it is clear that himself and his grandfather were residing together and the litigation pending before the - 9 - RSA No. 5152 of 2010 trial court was well within the knowledge of petitioner. In his evidence he has not deposed the cause for delay. He has only deposed that when he approached the revenue authorities for mutation at that time he came to know about the judgment and decree. He has not deposed on which date he approached the revenue authority. He has not produced single document to support his contention. His evidence is lacking to prove the sufficient cause for condonation of delay. When there is a delay of two year 10 months the burden lies upon the petitioner to show sufficient cause so as to condone the delay happened in approaching this court. In the absence of satisfactory evidence it cannot be said that the petitioner has discharged his burden and able to show the sufficient cause. His evidence is quite formal and even not proving that when he approached the revenue authorities he came to know about the judgment and decree. When his grandfather died nearly two years after the judgment and decree the said fact was well within the knowledge of his grandfather and himself. The evidence is not cogent to prove the sufficient cause as required for condonation of delay. 9) Looking to the evidence of RW.1 he has deposed that there is no sufficient cause shown by the petitioner for condonation of delay. Therefore the abnormal delay cannot be condoned. Further he has deposed that the result of the suit is well within the knowledge of petitioner and his grandfather. The evidence of RW.1 is also acceptable to prove that the petitioner has not assigned reasonable grounds for condoning the delay. - 10 - RSA No. 5152 of 2010 10) The learned counsel or the petitioner has relied upon a decision reported in ILR.2007.Kar.1893-State of Karnataka Reptd. by Revenue Secretary Vs. H.B.Munivenkatappa. I have perused the principles laid down in the above decision by the Hon'ble High Court. In the said case the Hon'ble High Court condoned the delay of 9 years and 7 months in preferring the Regular Appeal stating that the sufficient cause has been shown for condoning the delay. In the present case the petitioner who has approached the court after abnormal delay of two years 10 months has not placed acceptable evidence to constitute a sufficient cause for condoning the delay. Therefore the petitioner who has approached this court is not able to show sufficient cause for condoning the delay of two years 10 months. Hence I answer point NO.1 in the negative.” 10. A perusal of evidence of PW1 makes it clear that PW1 has filed his affidavit in respect of his examination-in-chief on 15th November, 2005. On that day at the request of the counsel for the respondent, the case was posted for cross-examination. On 19th April, 2007, the respondent Counsel has cross-examined and cross-examination was closed. Thereafter, the respondent has adduced his evidence as DW1 on 6th September, 2007 and cross-examination was done by the respondent Counsel on 28th March, 2008. Absolutely, there are no irregularities in recording the statement of witnesses. Hence, there is no force in the argument advanced on behalf of the appellant. I have also gone - 11 - RSA No. 5152 of 2010 through the Judgments relied upon by the learned Counsel for the appellant. The appellants have failed to place, sufficient cause for condoning the delay in filing the appeal. The first appellate Court has rightly observed the facts and circumstances of the case and dismissed the Application. In that view of the matter, none of the judgments relied upon by the learned counsel for the appellant will come to his aid. The first appellate Court has assigned proper reasons for rejecting the application and section 5 of Limitation Act. I do not find any error/illegality in the impugned order passed by the first Appellate Court. Accordingly, I hold that the Principal Civil (Sr.Dn.), Gokak was justified in rejecting the Application filed under Section 5 of Limitation Act while preferring the Regular Appeal. Substantial questions of law are answered accordingly. For the reasons aforestated, I proceed to pass the following: O R D E R Appeal dismissed. Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU