- 1 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100795 OF 2022 (RES-) BETWEEN: 1. SMT. SHITAVVA @ SHITABAI W/O. VASANT UNNALE, AGE: 78 YEARS, OCC: NIL, R/O. GOVINDAPUR GALLI, SHIVAJI CIRCLE, MUDHOL-5873, TQ: MUDHOL, DIST: BAGALKOTE. 2. SHIVAJI S/O. VASANT UNNALE, AGE: 38 YEARS, OCCU: COOLIE, R/O. GOVINDAPUR GALLI, SHIVAJI CIRCLE, MUDHOL-5873, TQ: MUDHOL, DIST: BAGALKOTE. …APPELLANTS (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: 1. BHAGYASHRI D/O. PRAKASH UNNALE, AGE: 16 YEARS, OCC: STUDENT, R/O. C/O. SANTRAM BHOSALE, TORAVI VILLAGE, TQ/DIST: BAGALKOTE-587312. 2. VIDYASHRI D/O. PRAKASH UNNALE, AGE: 14 YEARS, OCC: STUDENT, R/O. C/O. SANTRAM BHOSALE, TORAVI VILLAGE, TQ/DIST: BAGALKOTE-587312. BOTH ARE MINORS THEY ARE R/BY THEIR MINOR GUARDIAN NATURAL MOTHER RESPONDENT NO.3. YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 3. SMT. PREMA W/O. PRAKASH UNNALE, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. C/O. BAPUSAB BABU SALGUDE, MUDHOL, RESIDING AT ASANGI, NOW RESIDING AT C/O. SANTRAM BHOSALE, TORAVI VILLAGE, TQ/DIST: BAGALKOTE-587312. …RESPONDENTS (BY SRI. PRASHANT S. KADADEVAR, ADVOCATE FOR R1-R3) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BANAHATTI IN R.A.NO.44/2017 DATED 13.12.2021 AND ALSO THE IMPUGNED JUDGMENT AND DECREE PASSED IN O.S. NO.187/2013 DATED 24.11.2014 PASSED BY THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BANAHATTI AND DISMISS THE SUIT IN O.S.NO.187/2013 IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is filed by the defendant Nos.2 and 3, challenging the judgment and decree dated 13.12.2021 passed in RA No.44/2017 on the file of Senior Civil Judge and JMFC, Banahatti (for short, hereinafter referred to as - 3 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 24.11.2014 passed in OS No.187/2013 on the file of Civil Judge and JMFC, Banahatti (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiffs in part. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. It is the case of the plaintiffs that, the marriage of the son of defendant Nos.1 and 2 – Prakash Honnale has been solemnized with plaintiff No.3 and in their wedlock plaintiff Nos.1 and 2 were born. It is also stated that, the plaintiffs are entitled for share of deceased Prakash Honnale and as such, the plaintiffs requested the defendants to provide the maintenance and same was refused and as such, the plaintiffs have filed OS No.187/2013, seeking relief of maintenance from the defendants. - 4 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 4. After service of summons, the defendants failed to appear before the Trial Court and as such, placed ex- parte. 5. On the basis of the plaint averments, the Trial Court has formulated the points for consideration. 6. In order to establish their case, plaintiff No.3 was examined as PW1 and got marked 09 documents as Exs.P1 to P9. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 24.11.2014, decreed the suit of the plaintiffs in part and being aggrieved by the same, the defendants have preferred Regular Appeal in RA No.44/2017 on the file of First Appellate Court and the said appeal was resisted by the plaintiffs. Before the First Appellate Court, there was a delay of 2 years 347 days in filing the appeal and as such, defendants have preferred IA No.1 under Section 5 of Limitation Act, seeking condonation of delay in filing the appeal. The First Appellate Court, by its order dated 13.12.2021, dismissed IA No.1 under Section 5 of - 5 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 Limitation Act, consequently, dismissed the appeal. Being aggrieved by the same, the appellants/defendants have preferred this Regular Second Appeal. 8. This Court vide order dated 18.03.2025 formulated the following substantial question of law. “Whether the First Appellate Court has committed an error in dismissing I.A.No.1 having not satisfied with the “sufficient cause” shown by the appellant in the appeal? “ 9. I have heard Sri. Shriharsh A. Neelopant, learned counsel appearing for the appellants and Sri. Prashant S. Kadadevar, learned counsel appearing for the respondents. 10. It is contended by the learned counsel appearing for the appellants that, the suit itself is not maintainable for want of territorial jurisdiction and claiming maintenance cannot be made against the in-laws and therefore, the Trial Court has committed an error in decreeing the suit in part. He further contended that, the First Appellate Court has committed an error in not considering the reasons assigned by the appellant in the - 6 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 right perspective and therefore, the learned counsel appearing for the appellants sought for interference of this Court. 11. Per Contra, the learned counsel appearing for the respondents submits that, the impugned order passed by the First Appellate Court is just and proper as no sufficient cause has been provided by the defendants to condone the inordinate delay and accordingly, sought for dismissal of the appeal. 12. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the record. Perusal of the finding recorded by the First Appellate court on IA No.1 filed under Section 5 of Limitation Act reveals that, there is a delay of 2 years 347 days in filing the appeal. It is also to be noted that, no oral and documentary evidence have been adduced before the Trial Court by the defendants. Defendants have been placed ex-parte. It is stated, in the affidavit that, Criminal Miscellaneous No.53/2014 was pending consideration - 7 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 before the Competent Court between the same parties and therefore, the summons issued by the Trial Court was refused. It is also to be noted that, the age of the defendant Nos.1 and 2 was 70 and 65 years respectively at the time of filing of the suit. It is also to be noted that, the defendant No.3 was aged about 29 years and has not taken interest in the matter. It is also to be noted that, learned counsel appearing for the appellant has raised jurisdictional issue in filing the suit before the Trial Court. 13. Taking into consideration the declaration of law made by the Hon’ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others1, wherein it is held that, if the bona-fide reasons are assigned by the applicant in the application filed under Section 5 of the Limitation Act, the delay has to be condoned. It is also to be noted that, the plaintiffs and defendants are belong to same family claiming interest insofar as, the joint family properties are concerned. 1 (2013) 12 SCC 649 - 8 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 14. In that view of the matter, I am of the view that, the First Appellate Court being the last Court for finding of fact, the First Appellate Court ought to have liberal in accepting the appeal by imposing reasonable cost. Hence, the substantial question of law framed above favours the appellants herein and therefore, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 13.12.2021 in RA No.44/2017 on the file Senior Civil Judge and JMFC at Banahatti, is hereby set aside and the matter is remanded to the First Appellate Court for fresh consideration on merits. iii. Since, the parties are represented through their learned counsels and in order to avoid further delay in the matter parties are directed to appear before the First Appellate - 9 - NC: 2025:KHC-D:6741 RSA No. 100795 of 2022 Court on 04.06.2025 at 11.00 a.m. On their appearance, the First Appellate Court is requested to dispose of the appeal at the earliest. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 45