- 1 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100669 OF 2023 (INJ-) BETWEEN: SRI. KODI THIMMAYYA SINCE DECEASED BY HIS LRS 1. SMT. C. PADMA W/O. C. VISHWANATH, AGE. 56 YEARS, OCC. HOUSEHOLD, R/O.H.NO.21/2, OLD PLC COLONY, NEAR SAINT JOSEPH CHURCH TUNGABAHADRA DAM, HOSAPETE, DIST. BALLARI, KARNATAKA. 2. SMT. MARUTHAMMA W/O. AGE.51 YEARS, OCC. HOUSEHOLD, 198, WARD-04, NEAR GADVAL CAMP, KOPPAL-583235. 3. SMT. SAYAMMA W/O. B. RAMUDU, AGE.51 YEARS, OCC. HOUSEHOLD, #21, TIMALAPUR, SANAPUR, KOPPAL-583234. 4. SMT. LAXMIDEVI W/O. P NARASIMHALU, AGE.46 YEARS, OCC. HOUSEHOLD, NO.__WARD NO.3 CHILLAYYA CAMP, MUNIRABAD DAM, KOPPAL-583233. 5. K SHIVAJI S/O. K. THIMMAYYA, AGE. 48 YEARS, V N BADIGER Digitally signed by V N BADIGER Date: 2025.01.20 11:01:29 +0530 - 2 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 OCC. SERVICE, 2 WARD, SANAPUR, NEAR HULIGEMMA TEMPLE, KOPPAL-583234. 6. K. RAMESH S/O. K. THIMMAYYA, AGE.41 OCC. SERVICE, #175, SANAPUR, KOPPAL-583234. 7. SMT. MAHALAKSHMI W/O. GANGANNA, AGE.40 OCC. HOUSEHOLD, 4TH WARD, GANDHINAGAR, OPP. RAITH BHAVAN, HOSAPET-583201. DIST. BALLARI. 8. NAGESH S/O. TIMMAYYA, AGE. 50 OCC. SERVICE, #175, NEAR HULIGEMMA TEMPLE, SANAPUR, GANGAVATHI, KOPPAL-583234. …APPELLANTS (BY SRI. KINI NAGPRASAD SURESH, ADVOCATE) AND: 1. SRI. P. S. SOMASHEKHAR S/O. RAJAGOPAL RAJU, AGE.61 YEARS, OCC. AGRICULTURE, R/O. NARAYANPET, KOPPAL R/BY HIS GPA HOLDER, G. VISHWANATH RAJU S/O. APPALARAJU - 583231 R/O. NARAYANAPET KOPPAL. 2. SRI. YAMANOORAPPA S/O. DURUGAPPA VADDAR, AGE. 51 YEARS, OCC. COOLIE, R/O. BASAPUR VILLAGE, TQ AND DIST. KOPPAL. 583234. - 3 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 3. SRI. YELAKURI EARANNA RAMESH S/O. TIMMANNA, AGE. 48 YEARS, OCC. COOLIE, R/O. SANAPUR VILLAGE, TQ. GANGAVATHI, DIST. KOPPAL 583234. …RESPONDENTS ------- THIS RSA IS FILED U/SEC. 100 OF CPC., PRAYING TO IT MAY BE PLEASED TO ALLOW THE REGULAR SECOND APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.02.2011 PASSED BY THE COURT OF SENIOR CIVIL JUDGE, GANGAVATHI ALLOWING THE REGULAR APPEAL NO. 4/2010 FILED BY THE RESPONDENTS HEREIN IMPUGNING THE JUDGMENT AND DECREE DATED 12.01.2010 DECREEING THE SUIT IN O.S.NO. 126/2007 BY THE LEARNED COURT ADDITIONAL CIVIL JUDGE (JR.DN) GANGAVATHI AND CONSEQUENTLY DECREE THE SUIT IN O.S.NO.126/2007 ON THE FILE OF THE LEARNED ADDITIONAL CIVIL JUDGE (JR.DN) GANGAVATHI IN FULL BY GRANTING PERMANENT INJUNCTION IN RESPECT OF SUIT SCHEDULE PROPERTIES, WITH COSTS THROUGHOUT. THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is filed by the legal representatives of the plaintiff No.1 along with the plaintiff No.2 challenging the judgment and decree dated 18.02.2011 passed in RA No.4 of 2010 on the file of the Senior Civil Judge at Gangavathi, allowing the appeal and setting aside judgment and decree dated 12.01.2010 passed in OS No.126 of 2007 on the file of the Additional Civil Judge (Jr.Dn.), Gangavathi, decreeing suit of the plaintiffs. 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. The plaint averments are that the plaintiffs have filed the suit seeking relief of permanent injunction against the defendants from interfering with peaceful possession of the plaintiffs over the suit land. - 5 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish the case, plaintiffs have examined four witnesses as PW1 to PW4 and got marked 26 documents as Exs.P1 to P26. On the other hand, defendants have examined one witness as DW1 and produced 01 document as Exs.D1 to D40. 7. The trial Court, after considering the material on record, by its judgment and decree dated 12.01.2010 decreed the suit of the plaintiffs and being aggrieved by the same, the defendants have preferred Regular Appeal in RA No. 4 of 2010 on the file of First Appellate Court. Said appeal was resisted by the plaintiffs. The First Appellate Court, after re- - 6 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 appreciating the facts on record, by its judgment and decree dated 18.02.2011 allowed the appeal and set aside the judgment and decree passed by the trial Court in OS No. 126 of 2007. 8. Being aggrieved by the judgment and decree passed by the First Appellate Court, the legal representatives of plaintiff No.1 along with plaintiff No.2 have preferred this Regular Second Appeal under Section 100 of CPC. As there is delay of 3723 days in filling the appeal, the appellants herein have filed IA No.1 of 2023, seeking condonation of delay in filing the appeal. 9. I have heard Sri. Kini N.S., learned counsel for the appellants on IA No.1 of 2023. 10. It is submitted by Sri. Kini N.S, learned counsel appearing for the appellants by referring to the reasons set out in the affidavit accompanying - 7 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 application that, the original plaintiff No.1 died on 09.12.2010 and after the death of the original plaintiff, the legal representatives of plaintiff No.1, came to know about the judgment and decree passed by the First Appellate Court. Therefore, learned counsel appearing for the appellants submitted that since the bonafide reasons are set out in the affidavit accompanying application, delay of almost 12 years in filing the appeal be condoned. Accordingly, sought for allowing the appeal. 11. In the light of the submission made by the learned counsel appearing for appellants on IA No.1 of 2023, I have perused the reasons stated in the affidavit accompanying application that, plaintiff No.1 died on 09.12.2010, however, there are two plaintiffs who filed the original suit and therefore, the plaintiff No.2 ought to have vigilant and diligent in pursuing the matter the at the earliest. Taking into - 8 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 consideration the fact that it is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been to be examined under Section 5 of the Limitation Act. It is settled principle of law by the Hon'ble Apex Court in the case of state of State Of Nagaland Vs. Lipok Ao & Ors reported in (2005) 3 SCC 752, wherein, it is held that, in order to condone the delay, the court has to look into the cause of delay and not the length of delay and also if, the cause is shown to meet the ingredients of Section 5 of Limitation Act and same has to be accepted. Considering the law declared by the Hon'ble Apex Court in the aforementioned judgment and the fact that, plaintiff No.2 was very much alive and was not diligent in prosecuting the proceedings and ought to have filed the appeal at the earliest. Therefore, I am of the view that the reasons assigned by the deponent - 9 - NC: 2025:KHC-D:493 RSA No. 100669 of 2023 in IA No.1 of 2023 cannot be accepted to condone the delay of more than 12 years in filing the appeal. In that view of the matter, IA No.1 of 2023 is rejected, consequently, the appeal is dismissed. In view of the dismissal of the appeal, all pending application stands dismissed. Sd/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 21