- 1 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1302 OF 2024 (PAR) BETWEEN: 1. BALAKRISHNA AGED ABOUT 65 YEARS S/O LATE DEVDAS MYNADI R/AT MYNADI VADERHOBLI VILLAGE KUNDAPURA TALUK UDUPI DISTRICT-576201. …APPELLANT (BY SRI. K. PRASANNA SHETTY, ADVOCATE) AND: 1. SHARADA S. SAVANTH AGED ABOUT 52 YEARS D/O LATE DEVDAS MYNADI R/O ‘SRI SIDDI LAKSHMI KRUPA’ MAYDARBETTU BEEJADI VILLAGE KUNDAPURA TALUK UDUPI DISTRICT-576222. 2. THARAMATHI AGED ABOUT 69 YEARS D/O LATE DEVDAS MYNADI 3. SURENDRA AGED ABOUT 67 YEARS S/O LATE DEVDAS MYNADI Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 4. PRABHAVATHI AGED ABOUT 63 YEARS D/O LATE DEVDAS MYNADI 5. SHASHIKALA AGED ABOUT 61 YEARS D/O LATE DEVDAS MYNADI RESPONDENTS NO.2 TO 5 ARE RESIDING AT MYNADI VADERHOBLI VILLAGE KUNDAPURA TALUK UDUPI DISTRICT. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE ORDER DATED 04.06.2024 PASSED ON I.A.NO.II IN R.A.NO.21/2023 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE I.A. AND APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 29.11.2021 PASSED IN O.S.NO.20/2018 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KUNDAPURA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellant. 2. The Appellate Court dismissed the appeal on the ground of delay. The counsel would submit that when the suit was filed for the relief of partition, the appellant - 3 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 appeared in the month of February 2018 and filed written statement and thereafter appellant/defendant No.3 did not participate in the proceedings of the Trial Court and ultimately the judgment was passed on 29.11.2021 and thereafter also there was a delay of 1 year 2 months in filing the appeal. Now, the counsel would contend that an opportunity has to be given to the appellant to contest the matter and this Court has to set-aside the judgment of Trial Court and Appellate Court and remand the matter. 3. The main contention of the counsel before this Court is that both the Courts have committed serious material irregularity and illegality while appreciating the material evidence available on the record and also the First Appellate Court is not justified in dismissing I.A.No.2 filed by the appellant and fails to take note of not contesting the matter before the Trial Court and ought to have given an opportunity to contest the matter on merits and hence it requires interference. - 4 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 4. Having heard the learned counsel appearing for the appellant, the suit is filed by one of the daughter of Devadas Mynadi against the defendants seeking the relief of partition and they are the children of Devadasa Mynadi that is suit against the brothers and sisters. It is the specific case of the plaintiff/respondent No.1 that suit properties are the Joint Hindu family properties and suit ‘A’ schedule properties are the joint family properties and defendant No.3 who is the appellant herein appeared and filed written statement contending that ‘A’ schedule properties are the self acquired properties of their father namely Devadasa Mynadi and he has executed his last Will in respect of the same in favour of the defendant. The records discloses that the plaintiff in order to substantiate the case examined himself as P.W.1 and got marked document Ex.P.1 to P4 i.e., RTC extracts 2 in number, Certified copy of Land Tribunal order and Certified copy of Form No.7. The Trial Court considering the material on record, comes to the conclusion that the suit schedule - 5 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 properties are joint family properties and the defendant No.3 though filed the written statement did not contest the matter and hence, the Trial Court granted 1/6th share. 5. Being aggrieved by the said judgment, an appeal is filed in R.A.No.21/2023 with delay of 1 year 2 months and reason assigned in the application for condonation of delay that in the month of February 2023 when he came to know about surveyor called over the phone stating that schedule properties are required to be divided as per the order of the Court, then they approached the advocate and obtained certified copies and he told that he was defendant No.3 in said suit and placed exparte and there was a delay due to outbreak of Covid- 19 and he was constrained to shift his residence to his village and could not be communicated the same. The Trial Court having considered the reason assigned in the application and also considering the evidence of P.W.1 i.e., power of attorney holder, only relies upon Ex.P.2 prescription issued by the Government Hospital, - 6 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 Kundapura but, the date of treatment was 22.12.2023 i.e., after filing of the appeal. But, not any medical records prior to the decreettal of the suit or subsequent to the decree of the suit and hence comes to the conclusion that no sufficient grounds are made out and reject the same. 6. Being aggrieved by the order of the First Appellate Court, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant that whether both the Courts committed an serious material irregularity and illegality while appreciating the material on record and grounds which have been urged is that dismissal of I.A.No.2 is erroneous. 7. Having heard the appellant’s counsel and counsel in his argument would contend that an opportunity has to be given. Admittedly, suit was filed in the month of January-2018 i.e., on 04.01.2018 and written statement was also filed in the month of February-2018 and thereafter did not participate in the proceedings from 2018 to 2021 except filing of written statement and even appeal - 7 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 is also filed with delay of 1 year 2 months and the same is also not explained and made an attempt before the Appellate Court by placing on record Ex.P.2 and the same is also subsequent to the filing of the appeal and nothing is placed on record before the Trial Court what prevented him from February 2018 to 2023 for a period of 4 years, no doubt in the midst of the year in 2020, there was a Covid-19 outbreak that is in the month of March 2020, but judgment was passed in the year 2021 that too in the month of November 2021 and even after the judgment also, not filed the appeal in time and the same is not explained. Hence, the Appellate Court comes to the conclusion that no sufficient cause is shown to condone the delay. Having Considered the lethargic attitude of the appellant that except filing written statement in the month of February- 2018, for a period from 2018 to 2023, he did not participate in the proceedings deligently and also did not cross examine the witness and also not filed the appeal in time and suit is also only for the relief of - 8 - HC-KAR NC: 2025:KHC:27301 RSA No. 1302 of 2024 partition and 1/6th share was granted. When such being the case, I do not find any ground to admit and frame any substantive question of law as the very appeal is barred by limitation. Hence, no grounds to admit and frame any substantive question of law. 8. In view of the discussions made above, I pass the following: ORDER i) Second Appeal is dismissed. ii) In the view of dismissal of the appeal, consideration of I.A.No.3 doesn't arise. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 62