- 1 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 484 OF 2019 (DEC/INJ) BETWEEN: DR. D. P. YATHIRAJ S/O LATE DUMMI PANCHAKSHARAPPA AGED ABOUT 75 YEARS, R/O NO.311, NILES ROAD, SULTE C FAIR FIELD, O.H. 45014, UNITED STATES OF AMERICA BY HIS P.A. HOLDER SRI D.M.THIPPESWAMY S/O D MURIGEPPA AGED ABOUT 79 YEARS, R/O B.D.ROAD, CHITRADURGA - 577 501. …APPELLANT (BY SRI. JAYAPRAKASH R V., ADVOCATE) AND: 1. 1(a) SRI. D. P. THIPPESWAMY SINCE DECEASED BY HIS LRS SMT.D.T.CHINNAMMA W/O LATE D.T.THIPPESWAMY AGED ABOUT 59 YEARS, 1(b) D.T. KIRAN S/O LATE D.P.THIPPESWAMY AGED ABOUT 28 YEARS, Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 1(c) D.T.CHETHAN S/O LATE D.P.THIPPESWAMY AGED ABOUT 37 YEARS, RESPONDENTS 1(a) to 1(c) ARE RESIDENTS OF II FLOOR, DUMMI COMPLEX, LAKSHMI BAZAAR, CHITRADURGA - 575 501. 2. D.P. RAVI S/O LATE PANCHAKSHARAPPA AGED ABOUT 64 YEARS, RETD. GENERAL MANAGER H.M.T., R/O NO.151, “GOWRI NILAYA” BASAVESHWAR LAYOUT VIJAYANAGARA BANGALORE - 560 040. …RESPONDENTS (BY SRI. KANTHARAJAPPA M G., ADV. FOR R1(a & b); R1(c) AND R2 - SERVED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 29.11.2018 PASSED ON IA NO.1 IN RA NO.5/2018 ON THE FILE OF THE I ADDL.SENIOR CIVIL JUDGE AT CHITRADURGA REJECTING THE IA NO.1 FILED AGAINST THE JUDGMENT AND DECREE DATED 10.11.2017 PASSED IN OS NO.360/2012 ON THE FILE OF THE II ADDL.CIVIL JUDGE, CHITRADURGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the order on I.A.No.1 dated 29.11.2018, in R.A.No.5/2018 passed by the learned I Additional Senior Civil Judge, Chitradurga. 2. For convenience, the parties are referred to, as per their rankings before the trial Court. The appellant was defendant No.1, respondent No.1 was the plaintiff, and respondent Nos.2 was defendant No.2. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The deceased-plaintiff filed a suit against the defendants for a declaration and a permanent injunction regarding the suit schedule property. It is the case of the plaintiff that the plaintiff and his brothers (the defendants) were living in a Hindu Undivided Joint Family. They belong to Yelagodu village, - 4 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 Brahamasagara Hobli. They divided their properties under a registered partition deed dated 04.01.2006, and kept some properties jointly without division. In the said partition, the suit schedule property fell to the share of defendant No.1, and he is the owner of the suit schedule property. Defendant No.1 is settled in USA since more than 30 years, and he worked as Doctor. Defendant No.2 developed a joint family properties and there was an intention among them to retain their ancestral family properties with their family members in case of alienation. There was an agreement and covenant in partition deed dated 04.01.2006 that if a party to the partition deed intends to sell any property of his share, has to give an option to purchase to other brothers. Defendant No.1 intended to sell the suit schedule property fell to his share. The plaintiff has a preferential right in terms of partition deed. Defendant No.1 issued a legal notice dated 12.04.2012 through his advocate with an intention to sell the suit property. The plaintiff replied to the legal notice on 23.04.2012 expressing his willingness to purchase it and there was no further negotiations in this regard. It is contended that defendant No.1 has no right to - 5 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 negotiate the preferential right of the plaintiff to purchase the suit schedule property. Hence, prays to decree the suit. 3.1. Defendant No.2 remained unrepresented and was placed exparte despite service of suit summons. 3.2. Defendant No.1 filed a written statement contending that he is residing at USA since 40 years and he had handed over the management of the joint family property to the plaintiff. He asked the plaintiff to prepare the partition deed for registration, fix the date for registration on 05.01.2006 and asked him to come on that day. The partition deed was registered on 05.01.2006. The plaintiff with an ulterior motive incorporated terms in preferential rights of co- sharers. After the partition, the plaintiff developed ill will towards the defendant, as he stopped to help his family in the month of January 2012, he visited to the Chitradurga and offered to sell the suit schedule property to the family members, at that time, the plaintiff and defendant No.2 have expressed that they have no funds to purchase the same. It is - 6 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 contended that the plaintiff has lost his right of preemption to purchase the said property. Hence, prays to dismiss the suit against defendant No.1. 3.3. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the legal heirs of plaintiff prove that, themselves and defendant No.2 have got preferred right to purchase suit schedule property as per the terms of partition dtd.04.01.2006? 2) Whether the legal heirs of plaintiff prove that, the defendant No.1 intended to sell the suit schedule property illegally? 3) Whether the legal heirs of plaintiff are entitled for the relief as claimed and consequential relief of permanent injunction? 3.4. The legal representative of the deceased plaintiff i.e., plaintiff No.1(c) was examined as PW.1, and marked 10 documents as Exs.P1 to P10. In rebuttal, the power of attorney holder of defendant No.1 was examined as DW.1, and got marked 2 documents as Ex.D1 and Ex.D2. The trial Court, after recording the evidence of the parties, hearing both sides and after assessing the verbal and documentary evidence, - 7 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 answered issue Nos.1 to 3 in the affirmative, and issue No.4 as per the final order. The suit of the plaintiff was decreed with cost vide judgment dated 10.11.2017. 3.5. Defendant No.1, aggrieved by the judgment and preliminary decree passed in O.S.No.360/2012 preferred an appeal in R.A.No.5/2018 on the file of the learned I Additional Senior Civil Judge, Chitradurga along with an application for the condonation of delay of 28 days in filing the appeal. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the GPA holder is authorized by the appellant to file this IA and appeal? 2) Whether the appellant has made out sufficient grounds to allow the IA? 3) What order? 3.6. The First Appellate Court, after re-appreciating the verbal and documentary evidence, answered point Nos.1 and 2 in the negative, and point No3 as per the final order. The First Appellate Court rejected I.A.No.1 on the ground that defendant No.1 has not shown any sufficient cause in filing the appeal. - 8 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 Hence, the First Appellate Court rejected I.A.No.1, and consequently, dismissed the appeal vide judgment dated 29.11.2018. Defendant No.1, aggrieved by the order on I.A.No.1 dated 29.11.2018 passed in R.A.No.5/2018 by the learned I Additional Senior Civil Judge, Chitradurgae, filed this regular second appeal. 4. This Court, on 22.08.2025, admitted the appeal to consider the following substantial question of law: “Whether the First Appellate Court committed an error in rejecting the application under Section 5 of the Limitation Act, 1963 and inspite the appellant having shown sufficient cause for preferring an appeal at belated stage?” 5. Heard the arguments of the learned counsel for defendant No.1 and the plaintiff. 6. Learned counsel for defendant No.1 submits the defendant No.1 resides at US since 40 years and he has given power attorney in favour of Sri D.J.Mahabalesh. He submits that the general power of attorney did not file the appeal within time. He submits that during the course of suit, the power of - 9 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 attorney passed away on 24.11.2017 and defendant No.1 was not aware about the disposal of the suit by the trial Court. Immediately, after coming to know about the disposal of the suit, he has executed one more power of attorney in favour of one D.M.Thippeswamy. Hence, in view of the death of the power of attorney holder, defendant No.1 could not file the appeal well within time. He submits that defendant No.1 has shown sufficient cause for not preferring an appeal well within time. He submits that the First Appellate Court has committed an error in rejecting I.A.No.1 filed under Section 5 of the Limitation Act, 1963. Hence, on these grounds, he prays to allow the appeal. 7. Per contra, the learned counsel for the plaintiff submits that the First Appellate Court was justified in rejecting the application in I.A.No.1 on the ground that sufficient cause has not been shown. Hence, he prays to dismiss the appeal. 8. Perused the records, and considered the submissions of learned counsel for the parties. - 10 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 9. Reg. Substantial Question of Law: There is no dispute that the plaintiff has filed a suit for a declaration and a permanent injunction. The parties have led the evidence. The trial Court has decreed the suit vide judgment dated 10.11.2017. Admittedly, defendant No.1 was examined through a power of attorney holder. Subsequently, after his death, the appeal is filed by the power of attorney holder i.e., D.M.Thippeswamy. The First Appellate Court has rejected the application solely on the ground that the GPA holder of defendant No.1 has not produced the GPA executed by defendant No.1 i.e., the appellant herein in favour of D.M.Thippeswamy. That, D.M.Thippeswamy has filed the appeal without any authorization. Defendant No.1 has produced the GPA along with this appeal, which discloses that defendant No.1 has authorized the D.M.Thippeswamy as his power of attorney, and from the perusal of the recital in power of attorney, it discloses that defendant No.1 has authorized his GPA to file the appeal, and act either personally or through agent involved in all the courts etc. The First Appellate Court, without verifying the recital of the GPA executed by defendant No.1 in favour of D.M.Thippeswamy, has held that defendant No.1 has not shown - 11 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 sufficient cause for the condonation of delay of 27 days in filing the appeal. In view of the proposition of the law laid down by the Hon'ble Apex Court in the case of COLLECTOR LAND ACQUISITION, ANANTNAG & ANOTHER VS. MST. KATIJI & ORS. reported in (2013) 3 SCC 66, wherein it was held that while considering an application for condonation of delay, the Court should be liberal. 10. Admittedly, the First Appellate Court has rejected the application for the condonation of delay on technical ground. The delay in filing the first appeal is only 27 days. There is no inordinate delay in filing the appeal. Thus, the order passed on I.A.No.1 by the First Appellate Court is contrary to the proposition of law laid down by the Hon'ble Apex Court in the case of Mst. Katiji (Supra). Defendant No.1 has shown sufficient cause for not preferring the appeal well within time. Admittedly, he is residing in USA, and he personally could not come, and file an appeal; he executed the power of attorney in favour of D.M.Thippeswamy, who was examined as PW.1 before the - 12 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 First Appellate Court and there is no rebuttal evidence from the respondent side before the First Appellate Court. Thus, the First Appellate Court has committed an error in rejecting I.A.No.1. In view of the above discussion, I answer substantial question of law in the Affirmative. 11. Accordingly, I proceed to pass the following: ORDER i. The regular second appeal is allowed. ii. Order on I.A.No.1 dated 29.11.2018 passed in R.A.No.5/2018 by the learned I Additional Senior Civil Judge, Chitradurga is set aside. Accordingly, I.A.No.1 is allowed. Delay of 27 days is condoned in filing the appeal. The appeal is restored to its original file. iii. The first Appellate Court is directed to dispose of the appeal on merits. iv. The parties are directed to appear before the First Appellate Court on 10.11.2025, without awaiting any further notice. - 13 - HC-KAR NC: 2025:KHC:33024 RSA No. 484 of 2019 v. Office is directed to transmit the records to the First Appellate Court forthwith. In view of the disposal of the appeal, pending I.As’ if any, do not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB