- 1 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1175 OF 2014 (PAR) BETWEEN: MOMIYAZ S/O LATE ABDUL MUNAF SAB AGED ABOUT 29 YEARS, OCCUPATION: CARPENTER R/O BHANUVALLI VILLAGE HARIAHARA TALUK, DAVANAGERE DISTRICT-577601. …APPELLANT (BY SRI. HARISH KUMAR M.S., ADVOCATE) AND: 1. MUNEER AHAMMAD S/O LATE BUDEN SAB BHANUVALLI, AGED ABOUT 59 YEARS, R/O SHIMOGA ROAD, JIGALER ONI, MALEBENNUR HARIHAR TALUK-577601. NASIR AHMMED SINCE DECEASED BY HIS LRS 2. SMT. GULAB JAN W/O LATE NASIR AHAMMEAD AGED ABOUT 49 YEARS, R/O OLD JAMIYA MASJID ROAD, MALEBENNUR, HARIHAR TALUK-577601. Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 3. SMT. JABINA BANU D/O LATE NASIR AHAMMEAD W/O ISHRAD, AGED ABOUT 33 YEARS, R/O NEAR KOTE MASJID JAMULLA MOHALLA, RANEBENNUR-581115 HAVERI DISTRICT. 4. HIBJUNNISA W/O ABDUL MUNAF SAB BHANUVALLI AGED ABOUT 53 YEARS 5. JAVEED ALI S/O LATE ABDUL MUNAF SAB BHANUVALLI, AGED ABOUT 33 YEARS, 6. SADIQULLA S/O ABDUL MUNAF SAB BHANUVALLI AGED ABOUT 31 YEARS, 7. MOMIYABANU D/O ABDUL MUNAF SAB BHANUVALLI AGED ABOUT 53 YEARS, THE RESPONDENT NO.4 TO 7 ARE ALL R/O 2ND CROSS, AZAAD NAGAR, MALEBENNUR, HARIHAR TALUK, DAVANAGERE DISTRICT-577601. …RESPONDENTS (BY SRI. V.B.SIDDARAMAIAH, ADV. FOR R1 & R2; V/O DATED 21.4.2025 SERVICE OF NOTICE TO R3 IS H/S; R4 TO R7 ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.01.2014 PASSED IN UNNUMBERED R.A.NO. /2011 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, REJECTING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 03.12.2008 PASSED IN O.S.NO.15/2007 ON THE FILE OF CIVIL JUDGE (JR.DN) & JMFC, HARIHARA AND ETC. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is filed against the order dismissing the appeal while dismissing the application for condonation of delay 1030 days. 2. The appellant before this Court is plaintiff no.5 before the Trial Court in OS No.15/2007 on the file of the Civil Judge (Jr. Dn.) Harihar. 3. Along with remaining four plaintiffs, the appellant filed suit for partition and that came to be dismissed. Then, the appeal is filed after 1030 days delay and that appeal was not numbered on account of the delay. 4. An application is also filed by plaintiff no.5/appellant to condone the delay of 1030 days on the premise that he was not in station and that he being a carpenter was working in different cities and he was not aware of the dismissal of the suit in OS No.15/2007. 5. Defendants/respondents before the Appellate Court, filed objections to the said application. Plaintiff no.5/appellant, to substantiate the contention relating to delay, examined - 4 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 himself and also examined one witness, one of his relatives. The respondents did not lead any evidence on their behalf. 6. First Appellate Court, considering the materials on record, took a view that the delay is not properly explained and accordingly, the appeal was dismissed. Hence, the present second appeal. 7. This appeal is admitted to consider the following substantial question of law:- "Whether the First Appellate Court is justified in dismissing the application for condonation of delay of 1030 days?" 8. Learned counsel for the appellant would submit that the suit is one for partition and separate possession and dismissal of appeal while rejecting the application for condonation of delay of 1030 days would affect the right of the appellant in the immovable property which he has inherited after the demise of his father. It is his further submission that he being carpenter was working in various places and was not in station, as such, appellant was not aware of the dismissal of the suit. - 5 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 9. It is also urged on behalf of the appellant that respondents have not led any rebuttal evidence to disbelieve the claim made by plaintiff No.5/appellant. 10. This Court has considered the contentions raised at the bar and perused the records. 11. It is not in dispute that the suit is filed for the relief of partition and separate possession. The present appellant is plaintiff no.5. The suit is dismissed. However, the remaining plaintiffs have not filed any appeal. 12. Plaintiff no.5, who claims that he was not in station and he was residing elsewhere was not aware of the dismissal and filed an appeal after 1030 days delay, has also lead evidence explaining the reasons for the delay. 13. The law relating to application for condonation of delay is well settled. The Courts have to be liberal in considering the application for condonation of delay. It is also noticed that the suit is one for partition and separate possession, where the plaintiff claims that he has inherited the property after the demise of his father. - 6 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 14. No doubt, the suit is dismissed, however, plaintiff has right of first appeal under Section 96 of the Code of Civil Procedure, 1908. This being the position, this Court is of the view that the application for condonation of delay has to be considered liberally and delay of 1030 days in filing the appeal has to be condoned, as the delay in filing the appeal does not affect the right of the respondents, if any, over the property. Hence the following:- ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 08.01.2014 in Regular Appeal (unnumbered) - 2011, on the file of Senior Civil Judge, Harihar, are set-aside. (iii) Consequently, First Appeal is restored to the file of Senior Civil Judge, Harihar and First Appellate Court shall consider the appeal on merits. (iv) The appellant and respondent Nos.1 and 2 shall appear before First Appellate Court on 13.10.2025 without any further notice. - 7 - HC-KAR NC: 2025:KHC:37133 RSA No. 1175 of 2014 Notice shall be issued by the First Appellate Court to the remaining parties. It is made clear that nothing is expressed on the merits of the matter. All contentions on merits of the appeal are kept open. SD/- (ANANT RAMANATH HEGDE) JUDGE DN, SMJ List No.: 1 Sl No.: 11 ...