- 1 - HC-KAR NC: 2025:KHC-D:7721 RSA No. 100325 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100325 OF 2025 (PAR/POS) BETWEEN: SRI. MALLAPPA S/O. RUDRAPPA BADNIKAYI, AGE: 74 YEARS, OCC: AGRICULTURIST, R/O: HADLI, TQ: NARGUND, DIST: GADAG – 582 207. …APPELLANT (BY SRI. S. L. MATTI, ADVOCATE) AND: 1. SMT. SHIVAVVA W/O. SHEKHAPPA ASUNDI, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, R/O: HADLI, TQ: NARGUND, DIST: GADAG – 582 207. 2. SRI. SOMAPPA S/O. RUDRAPPA BADNIKAYI, AGE: 81 YEARS, OCC: RET. EMPLOYEE, R/O: VIDYANAGAR MUNDARGI, TQ: MUNDARGI, DIST: GADAG – 582 118. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE I.E., ORDERS ON IA NO.1 FILED UNDER SECTION 5 OF LIMITATION ACT PASSED IN R.A.NO.69/2024 DATED 02.04.2025 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM GADAG BY DISMISSING THE SAID IA NO.1 CONSEQUENTLY APPEAL WAS ALSO DISMISSED WHICH WAS FILED BY THE APPELLANT CHALLENGING THE JUDGMENT AND DECREE PASSED IN O.S.NO.41/2016 DATED 21.01.2019 ON THE FILE OF CIVIL JUDGE AND JMFC NARGUND, IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7721 RSA No. 100325 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendant No.2 aggrieved by the judgment and decree dated 21.01.2019 passed in OS No.41/2016 on the file of Civil Judge and JMFC, Nargund (for short, ‘Trial Court’), by which the said suit of the plaintiff/respondent herein was decreed granting 1/9th share to the plaintiff. Aggrieved by which the defendant No.2 preferred regular appeal in RA No.69/2014 on the file of Principal Senior Civil Judge and CJM, Gadag (for short ‘First Appellate Court’), which was dismissed by the judgment and order dated 02.04.2025 on the ground of there being delay of 1986 days in filing the said appeal. 2. Learned counsel for the appellant submits that the First Appellate Court erred in rejecting the application filed under Section 5 of the Limitation Act by the appellant without considering the reasons assigned therein. He submits after passing the decree, there was mediation between the parties at the instance of the elders of the family. As such, defendant No.2 did not take any steps in - 3 - HC-KAR NC: 2025:KHC-D:7721 RSA No. 100325 of 2025 filing the appeal. He submits that without giving any respect to the elders’ assurance, the plaintiff initiated the final decree proceedings in FDP No.8/2019. Even thereafter, the defendant acting upon the assurance given by the elders and did not file the appeal in time hoping the matter would be settled amicably. As such, there was a delay of 1986 days in filing the appeal. 3. On merits of the case learned counsel submits that the above suit in OS No.41/2016 is filed by the plaintiff who is the sister of defendant Nos.1 and 2. There is no dispute with regard to relationship between the parties. There is also no dispute with regard to the suit schedule property being ancestral property. The only contention that was raised by the defendant was that there was an oral partition in the year 1984 which was given effect by entering the names of the defendant Nos.1 and 2 in the revenue records and the RTC extracts reflected the names of the defendants, as such, the partition was given effect to. It is further contended that the defendants had expended huge amount while - 4 - HC-KAR NC: 2025:KHC-D:7721 RSA No. 100325 of 2025 conducting the wedding of the plaintiff after the death of their father. As such, the plaintiff was given 30 tolas of gold and amount of Rs.20,000/- towards her share. As such, the plaintiff did not have share or right interest over the suit properties. Thus, he submits in addition to oral partition since the plaintiff was given her share by means of cash and gold, the trial Court and the First Appellate Court failed to appreciate the same. Since, the defendant was hopeful of amicable resolution in the matter, he submits that since the appeal is dismissed on the ground of delay, an opportunity be given to the appellant to contest the matter, there is a delay in filing the appeal. Hence, seeks for allowing appeal. 4. Heard and perused the records. 5. The Trial Court taking consideration the rival contentions urged by the parties in the suit declined to accept the defence set up by the defendants inasmuch as no acceptable evidence was produced by the defendants to prove their case of prior partition and they giving the - 5 - HC-KAR NC: 2025:KHC-D:7721 RSA No. 100325 of 2025 share of the plaintiff by way of gold and cash and thereby decreed the suit by granting 1/9th share to the plaintiff. 6. The appeal filed by the appellant is after the delay of 1986 days. It is not the case of appellant that he was not aware of the decree passed by the trial Court or that he was not aware that such a decree was required to be challenged. It is his plea that after passing of the decree by the trial Court, elders of the family had intervened to resolve the matter amicably and he was hopeful of amicable settlement to the matter. Even if this stand is to be accepted, evidently the plaintiff-respondent No.1 had initiated the final decree proceedings in FDP No.8/2019 and the appellant herein was even aware of the said matter. Nothing prevented the appellant to file the appeal within prescribed period or even after filing of the FDP proceedings. The appeal is filed after lapse of 5 years of initiation of Final Decree Proceedings. 7. Condonation of delay is a discretionary power of the Court. It cannot be claimed as a matter of right. “Sufficient Cause” should be demonstrated for not - 6 - HC-KAR NC: 2025:KHC-D:7721 RSA No. 100325 of 2025 preferring the appeal within prescribed period of limitation, and not beyond. Deliberate negligence and conscious inaction cannot be condoned. The First Appellate Court taking note of these aspects of the matter has declined to condone the delay as there was no sufficient cause and satisfactory reasons assigned. The First Appellate Court has found that it is a case of gross negligence and complete absence of diligence on the part of appellant in prosecuting the matter. This Court do not see any reason to differ with the reasoning and conclusion arrived at by the First Appellate Court in rejecting the application to condone the delay and consequent dismissal of the appeal. No substantial question of law arises in the matter warranting interference. Hence, appeal is dismissed. Sd/- (M.G.S. KAMAL) JUDGE SMM- para 01 VMB-para 02 to till end CT-ASC/ List No.: 1 Sl No.: 45