- 1 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CIVIL REVISION PETITION NO. 39 OF 2025 (MC) BETWEEN: SMT. RUDRAMMA W/O LATE RUDRAPPA, AGED ABOUT 94 YEARS, RESIDING AT ISUVANAHALLI VILLAGE, THYAMANGONDLU HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 132 …PETITIONER (BY SRI. R.A. DEVANAND, ADVOCATE) AND: 1. SMT. SIDDALINGAMMA W/O LATE SIDDAGANGAPPA, AGED ABOUT 70 YEARS, 2. SRI. LINGADEVARU, S/O LATE SIDDAGANGAPPA, AGED ABOUT 63 YEARS, 3. SRI. MALIKARJUNAIAH, S/O LATE SIDDAGANGAPPA, AGED ABOUT 53 YEARS, Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 4. SRI. SURESH KUMAR, S/O LATE SIDDAGANGAPPA, AGED ABOUT 50 YEARS, RESPONDENTS NO.1 TO 4 ARE RESIDING AT HONNENAHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 111. 5. SRI. RUDHRAMUNI, S/O SRI. CHANDRASHEKARAIAH, AGED ABOUT 50 YEARS, RESIDING AT LAKKUR VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE-562111. 6. SMT. CHANDRAMMA, W/O LATE CHIKKANNA, AGED ABOUT 62 YEARS, 7. SRI. KUMAR, S/O LATE CHIKKANNA, AGED ABOUT 42 YEARS, 8. SRI. SURESH, S/O LATE CHIKKANNA, AGED ABOUT 40 YEARS, 9. SRI. SATISH, S/O LATE CHIKKANNA, AGED ABOUT 38 YEARS, - 3 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 RESPONDENTS NO.6 TO 9 ARE RESIDING AT BANDEPALYA, DABASPETE HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE-562111. 10. SMT. SIDDAGANGAMMA, W/O LATE PUTTAIAH, AGED ABOUT 70 YEARS, 11. SRI. SIDDALINGAPPA, S/O LATE PUTTAIAH, AGED ABOUT 50 YEARS, 12. SRI. MOHAN, S/O SRI. PUTTALAH, AGED ABOUT 48 YEARS, 13. SRI. VIRUPAKSHA, S/O LATE PUTTAIAH, AGED ABOUT 45 YEARS, RESPONDENTS NO.10 TO 13 ARE RESIDING AT HONNENAHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE – 562 111. 14. SMT. SOWBHAGYA, W/O LATE SIDDAPPA, AGED ABOUT 55 YEARS, - 4 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 15. SRI. ARADHYA, S/O LATE SIDDAPPA, AGED ABOUT 32 YEARS, 16. SMT. SHOBHA, D/O LATE SIDDAPPA, AGED ABOUT 28 YEARS, RESPONDENTS NO.14 TO 16 ARE RESIDING AT SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE – 562 111. …RESPONDENTS (BY SRI. T.C. SATHISH KUMAR, ADVOCATE FOR R2 TO R4 AND R10 TO R13; VIDE ORDER DATED 21.01.2025, NOTICE TO R1, R5 TO R9, R14 TO R16 ARE D/W) THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 17.12.2024 PASSED IN MISC.NO.23/2003 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU (R) DISTRICT, BENGALURU, DISMISSING THE APPLICATION FILED UNDER PETITION U/S 5 OF LIMITATION ACT, AND PETITION FILED BY PETITIONER U/O 41 RULE 19 R/W SEC.151 OF CPC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an order passed on 17.12.2024 passed in Miscellaneous Petition No.23/2003 seeking recall of the order passed in Regular Appeal, which had come to be dismissed for its non-prosecution. 2. Heard Sri. R.A. Devanand, learned counsel appearing for the petitioner, Sri. T.C. Sathish Kumar, learned counsel appearing for respondent Nos.2, 3, 4, 10, 11, 12 and 13, and have perused the material on record. 3. Facts in brief, germane, are as follows: The saga of litigation commences in the year 1987, by the present petitioner, instituting a suit in O.S.No.88/1987. The suit comes to be dismissed, not for non-prosecution, but on its merit holding that the petitioner has not proved the relationship, for seeking partition of joint family properties. The said order dated 05.08.1993 was called in question by the - 6 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 plaintiff before the First Appellate Court. The First Appellate Court rejects the petition for its non-prosecution on 19.09.2002. The petitioner then prefers a Miscellaneous Petition seeking recall of the said order in Miscellaneous Petition No.23/2003. Miscellaneous Petition No.23/2003 has gone for 21 years. In all the 21 years, the case was posted on several occasions, and the petitioner remained absent. The concerned Court records while dismissing Miscellaneous Petition No.23/2003 as to how it has been pending for so many years with the absence of the petitioner on every occasion. The order of the concerned Court reads as follows: "Point No.1 and 2 : As these points are interconnected and involve common discussion and appreciation, they are taken up together for common discussion. The petitioner herein seeks to restore the RA.153/1993, which was dismissed for default on 19.09.2022 by this court. The said RA was preferred by the petitioner herein in view of the judgment and decree passed against the petitioner herein in OS.88/1987 by the court of Munsiff and JMFC, Nelamangala. In this regard, the petitioner submits that she is an uneducated lady and she was suffering from high blood pressure and has Gall bladder problem and had also a fall near her lands, as a result the petitioner has sustained fracture. 8. In this regard, GPA holder of the petitioner is examined as pw.2 and got marked two documents. Ex.P1 is the GPA, while Ex.P2 is the Order sheet in RA.153/1993, which reflects that the case was posted for arguments since 05.10.2001. Dates posted for arguments is as follows: 5.10.2001, - 7 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 3.10.2001, 30.11.2001, 04.01.2002, 22.01.2002, 30.01.2002, 22.02.2002, 02.03.2002, 11.06.2002, 17.07.2002, 13.08.2002, 13.08.2002, 28.08.2022, 19.09.2022. This court after giving these many dates has dismissed the appeal on 19.09.2022. 9. Order 41 Rule 19 deals with the re-admission of appeal dismissed for default, which is extracted below: "Re-admission of appeal dismissed for default: Where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fir." To prove that the petitioner was prevented by any extraordinary cause from appearing when the appeal was called out for hearing, the burden lies on the petitioner. In the petition, it is only averred that petitioner is an uneducated lady and is suffering from BP and Gall bladder problem and also suffered fracture. In this regard, no medical documents are furnished by the petitioner in order to substantiate the same. Mere oral say of the petitioner is not sufficient to come to a conclusion that the petitioner has given sufficient reason that prevented her from appearing before the court. Since the oral evidence of the petitioner is not corroborated by any documentary proof and as Ex.P2 itself reflects that sufficient opportunities were given to the petitioner to conduct the case this court is of the opinion that the petitioner has failed to substantiate the case which prevented from prosecuting the case. In this instant case the petitioner was given as many as 15 opportunities and yet has not conducted the appeal. This act of petitioner is a clear signal that petitioner was not interested to prosecute the case and accordingly appeal was rightly dismissed. 10. On the contrary, the respondents, who were examined as Dw.1 and Dw.2 have only furnished evidence with regard to the relationship of the petitioner with that - 8 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 of Rudrappa. However, these facts cannot be considered in an adjudication of the petition to set aside the dismissal order. 11. Since there are no sufficient material produced by the petitioner to show sufficient cause that prevented the petitioner from appearing before the court and also to prefer the petition in time, this court is of the considered opinion that petitioner has failed to make out grounds to allow the petition. Though the petition filed by the petitioner is under Order 16 Rule 19, the same is to be considered as Order 41 Rule 19 CPC. Accordingly, I answer the above Points in the Negative. 12. Point No.3: For the reasons discussed supra, I pass the following: ORDER The application filed by the petitioner U/Section.5 of Limitation Act and Petition filed by petitioner under Order 41 Rule 19 R/w Section 151 of CPC is dismissed." (emphasis supplied) 4. Learned counsel appearing for the petitioner submits that the records before the concerned Court were lost and secondary file had to be built up. This happens between 2015 and 2020. 5. The aforesaid narration while dismissing Miscellaneous Petition No.23/2003 is that the petitioner has remained absent on 05.10.2001, 03.10.2001, 30.11.2001, 04.01.2002, 22.01.2002, 30.01.2002, 22.02.2002 and again up - 9 - HC-KAR NC: 2025:KHC:32761 CRP No. 39 of 2025 to 19.09.2002. Therefore, the absence is not when the records were not traced, but the absence was long before the said act of the records not being traced, it is not one occasion, but 20 occasions, the petitioner did not appear before the Court and Miscellaneous Petition No.23/2003 comes to be dismissed, on the ground that no sufficient cause was shown for not appearing on 20 occasions for several years. 6. In the light of the reasons so rendered by the concerned Court, I do not find any warrant to interfere with the order of dismissal of Miscellaneous Petition No.23/2003 seeking recall of the order. The petitioner has been hopelessly indolent. The litigation is now 38 years old. If the petition would be allowed now to restrain the proceedings, it would be putting a premium on the absence of the petitioner. The petition thus stands dismissed. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 9