- 1 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 955 OF 2024 (PAR/INJ) BETWEEN: SRI. D. TAKINAIK S/O DAKYA NAIK, AGED ABOUT 49 YEARS, RESIDING AT 4TH CROSS, SWAMY VIVEKANANDA EXTENSION, GADIKOPPA, SHIVAMOGGA CITY – 577 201. …APPELLANT (BY SRI. KASHINATH J D., ADVOCATE) AND: 1. SMT. TAKRI BAI W/O LATE HALA NAIKA, AGED ABOUT 71 YEARS, 2. SMT. JAYABAI D/O LATE HALA NAIKA, AGED ABOUT 51 YEARS, 3. SMT. SUMITHRA W/O HANUMANTHA NAIKA, AGED ABOUT 46 YEARS, 4. SRI. SHEKAR NAIK Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 S/O BHEEMA NAIK, AGED ABOUT 61 YEARS, 5. SRI. SATHISH NAIK S/O PURADA NAIK, AGED ABOUT 36 YEARS, 6. SMT. NETHRA BAI D/O SHEKAR NAIK, AGED ABOUT 26 YEARS, 7. SMT. TULASI BAI W/O SHEKAR NAIK, AGED ABOUT 56 YEARS, RESPONDENT NO.1 TO 7 ARE RESIDING AT GADIKOPPA THANDA VILLAGE, PURADAL ROAD, SHIVAMOGGA, SHIVAMOGGA DISTRICT – 577 201. 8. SRI. S. DHANARAJ NAIK S/O SHEKAR NAIK, AGED ABOUT 34 YEARS, RESIDING AT HUNASODU VILLAGE, SHIVAMOGGA TALUK, SHIVAMOGGA DISTRICT – 577 216. …RESPONDENTS (BY SRI. P N HARISH, ADVOCATE FOR R8; R4 – SERVED, VIDE ORDER DATED 11.07.2025 NOTICE TO R1 TO R3 & R5 TO R7 IS HELD SUFFICIENT) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 01.06.2024 PASSED ON IA No.1 IN RA No.17/2022 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, DISMISSING THE IA NO.1 - 3 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 FILED UNDER SEC.5 OF THE LIMITATION ACT., AND FILED AGAINST THE JUDGMENT AND DECREE DATED 21.12.2018 PASSED IN OS NO.127/2017 ON THE FILE OF IST ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA AND ETC., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Kashinath J.D., learned counsel for the appellant and Sri P.N. Harish, learned counsel for respondent No.8. 2. The present appeal though listed for admission, taken up for consideration on merits having regard to the fact that the appeal of the appellant before the First Appellate Court came to be dismissed on the ground of delay and not on merits. 3. Brief facts which are utmost necessary for disposal of the appeal are as under: 3.1. A suit came to be filed in O.S.No.127/2017, which on contest came to be decreed by judgment and decree dated 21.12.2018. - 4 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 3.2. Being aggrieved by decreeing of the suit, defendant No.8 filed an appeal before the First Appellate Court in R.A.No.17/2022, challenging the validity of the judgment and decree passed by the Trial Judge. 3.3. The suit was in respect of agriculture land, measuring 3 acres in Sy.No.84 of Maligenahalli village, Kasaba Hobli, Shivamogga Taluk bounded on East by land belonging to Mutt, West by Anupinakatte road, North by Puradal main road and South by garden land of Kamal Jain. 4. Learned Judge in the First Appellate Court took into consideration that there was a delay of more than four years in filing the appeal, held an enquiry on the application seeking condonation of delay. Taking note of the principles of law enunciated by the Hon'ble Apex Court in the case of Basavaraja and another vs. Special Land Acquisition Officer, reported in (2013) 14 SCC 81, held that the reasons assigned for condonation of delay is not satisfactory and dismissed the application seeking condonation of delay and consequently dismissed the appeal as well. - 5 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 5. Being further aggrieved by the same, defendant No.8 is before this Court in this appeal on the following grounds:  Judgment and decree passed by the trail court and confirmed by the appellate court is illegal since both courts have committed serious error where right of the appellant has been negated without giving an opportunity. Hence the judgment and decree passed by the both the courts are liable to be set aside.  The Appeal under section 96 of the CPC is right of appeal and same has been dismissed on the ground of delay where right of the appellant pursuant to the registered sale deed has been affected by a person who is not having any right in the family of the defendant no-1 to 7. Denial of right to appeal on the ground of delay resulted in serious of miscarriage of justice.  Apparently suit of the plaintiff is collusive suit at the instance of the defendant No-1 to 7 with an intention to defeat the right of the Appellant over the suit schedule property. Therefore the decree which has been passed without taking into note of the collusive approach trail court defeated the appellant's sale deed. The Appellate court inspite of the merit in the case of the appellant dismissed the Appeal on the ground of delay. In the event of delay may condoned by the appellate court and not filing of the written statement may permitted by the appellate court the matter would have been remitted back to the trail court since the delay in filing - 6 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 the appeal not created any third party right, further preliminary decree also not subjected for FDP proceedings, therefore the approach of the appellate court is bad in law. Hence, both the courts committed serious error in appreciating the evidence which resulted in denial of partition to appellate in respect of item No.1 schedule property.  It is submitted that the Plaintiff claiming that he is one of family member family of the defendant No-4 and contented that his mother late Kusuma was the first wife of the defendant No-4. Before the trail court to prove the said fact there is no material produced by the plaintiff, despite trail court decreed the suit by allotting the share which is illegal.  The relationship of the plaintiff with defendant No-4 and marriage of the defendant No-4 with late Kusuma also asserted and proved by producing sufficient material proof. Before the trail court in an ex-parte decree 7 documents marked as Ex P1 to P7, in which genealogical tree, and some revenue documents were produced and those documents does not establish the claim of the plaintiff, without looking into the same the trail court decreed the suit which is illegal and bad in law. Further these aspects primarily appear from the judgment and decree of the trail court and without noticing the merits of the case dismissed the Appeal on the ground of delay. Hence judgment and decree passed by the both court are liable to be set aside.  Though the suit is decreed ex-parte on 21-12-2018 but the FDP has been filed in the year 2023 and in the - 7 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 mean time already appeal is filed by the Appellant challenging the ex-parte decree. In view of this, the dismissal of the Appeal by the Appellate court is illegal and contrary to the Judgment rendered by the Apex court in the case of Collector, Land Acquisition, Ananthanag and another Vs Mst. Katiji and others reported in AIR 1987 SC page 1353. Hence the impugned judgment of the Appellate court is liable to be set aside.  The findings of the appellate court dismiss the appeal on the ground of the delay are illegal since material on record of the have been ignored. Hence the judgment of the appellate court is liable to be set aside.  The Appeal is creation of statute and same is right of appeal. In the instant case on hand there is further proceedings ends in creating the third party right, therefore the dismissal of appeal is resulted in defeating the right of the Appellant on the ground of delay which is against to the legal principles of law.  Non filing of written statement and not contesting the case would not amount to legitimise claim of the plaintiff unless the plaintiff prove his case by producing the evidence. In the instant case on the plaintiff has not proved the relationship of Kusuma as wife with defendant No-4 and there is no material produced to establish the wife and husband relationship despite the trail court decreed the suit which is illegal.  It is submitted that the suit against the Defendant No- 1, 2, and 7 are treated as not necessary and memo was filed withdrawing the suit against them and remaining - 8 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 defendants have been treated as ex-parte. When claim of the plaintiff has been withdrawn against defendant No-1, 2 & 7 but they have been allowed continue even in the decree and suit is not amended and amended plaint has not been filed. In view of this error the judgment of the trail court suffers from error, hence same is liable to be set aside.  It is submitted that the findings on delay application by the appellate court are illegal since such delay has resulted in affecting the right of appeal where right over the immovable property has been taken away by a person who has no right or share in the suit scheduled properties. In view of this, order of the appellate court is liable to be set aside.  Findings recorded by the appellate court to dismiss application to condone delay without considering the merit of the case is resulted in miscarriage of justice, hence the judgment of the appellate court is illegal and bad in law.  The trial court while dealing with issues for determining the claim of partition, formulated seven issued from their plaint pleadings. In which issue relating to the claim of the plaintiff that, he is the son of Late Kusuma alleged first wife of defendant No.4 is concerned no issue was framed, in spite of this remaining issues have been answered which resulted in decreeing the suit in favour of the plaintiff. In view of this judgment of the trial court is erroneous and suffers from serious error in considering the evidence of the plaintiff to pass judgment and decree in his favour. - 9 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024  It is submitted that the findings of the trail court and appellate court are illegal and all the issues framed by the trail court not proved by the plaintiff and in spite of this suit has been decreed and same is erroneously confirmed by the appellate. 6. Appellant has raised the following substantial questions of law before this court. i. Whether the judgment rendered by the first appellate court by dismissing the appeal solely on the ground of delay resulted in substantial miscarriage of justice, where right of appeal has been curtailed on the ground of delay? ii. Whether the judgment of the appellate court is right in the facts and circumstances of the case where no prejudice would have been cause to the plaintiff in the event of condone the delay in filing of the appeal and allowing the appellant to pursue his remedy of appeal? iii. Whether the judgment of appellate court is correct in denying the right of defence to defendant by allowing appeal condoning the delay as well as denying his right of defence by filing an written statement? iv. Whether the judgment and decree passed by the trial court is suffers from error in not formulating the issue relating to relationship claimed by the plaintiff with defendant No.4? v. Whether the judgment and decree passed by the trial court is sufficient where plaintiff had not produced no material to prove the relationship of the plaintiff with - 10 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 defendant No.4 claiming that his mother Kusuma was the first wife of defendant No.4? vi. Whether judgment and decree passed by the trial court to grant relief of partition in the absence of proof of marriage of Kusuma with defendant No.4? vii. Whether the judgment and decree passed by the trial court as well as appellate court are correct and proper to the prevailing law and procedure to recognizing the share of the plaintiff? viii. Whether the findings of the trail court on issue No.1 in the absence of proof of marriage of Kusuma with defendant No.4 as well as the dismissal of the appeal by the appellate court where substantial proof of entitlement of partition not considered while dismissing the appeal on delay? ix. Whether it is necessary to interference in the trail and appellant courts judgment and decree ? 7. Sri Kashinath J.D., learned counsel for the appellant reiterating the grounds contended that when the rights of the immovable property is to be adjudicated, dismissing the appeal only on the technical ground of delay has resulted in grave miscarriage of justice and sought for admitting the appeal and remit the matter to the First Appellate Court to consider on merits of the matter. - 11 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 8. He also pointed out that the learned judge in the First Appellate Court, took into consideration that there was pandemic in the form of COVID-19, but did not give the benefit of saving limitation period in COVID-19 period, by noting that the Courts were partially functioning. Therefore, the reasoning supplied by the First Appellate Court and the approach of the First Appellate Court to somehow dismissing the appeal only on technical reason has resulted in miscarriage of justice and sought for allowing the appeal and remit the matter to the First Appellate Court for fresh consideration on merits in accordance with law by condoning the delay. 9. Per contra, Sri P.N. Harish, learned Counsel for the contesting respondent-plaintiff, contended that the material evidence placed on record in the form of oral testimony of P.W.1 was not supported by any plausible documentary evidence and mere self-serving testimony of the appellant was not sufficient to condone the huge delay of more than four years in filing the appeal. Therefore, dismissal of the application seeking condonation of delay is just and proper and sought for dismissal of the appeal. - 12 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 10. Having heard the arguments of both sides, this Court perused the material on record meticulously. 11. On such perusal of the material on record, the learned Judge in the First Appellate Court has noted that there was an outbreak of the pandemic in the form of COVID-19 and there was a limited period of lockdown. But, the learned Judge in the First Appellate Court also noted that Courts were partially functioning and therefore, the condonation of delay is impermissible. 12. Further the learned Judge in the First Appellate Court was astonished to note that in the affidavit sworn to by the plaintiff it has been stated that the plaintiff is not the son of Shekar Naika and respondent No.1 to 8 had filed collusive suit. 13. On the merits of the matter whether the defendant No.8 has got valid grounds to urge before the First Appellate Court or not is a different question that is to be looked into, when the appeal is considered on merits. 14. Taking note of the fact that there was no benefit that was granted for the computation of the limitation due to the outbreak of pandemic COVID-19. As per the general - 13 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 directions issued by the Hon'ble Apex Court and the consequent notification issued by this Court in the form of circular, the approach of the First Appellate Court in holding that the delay is not properly explained cannot be countenanced in law. 15. Just because, PW1 was a science graduate itself would not be sufficient enough to say that he was well aware of the Court proceedings. No doubt, there is negligence on the part of the appellant in not approaching the Court within the limitation prescribed under the statute. 16. However, the law of limitation is always applied with an intention to see that the orders of the Court would become final if it is not appealed within prescribed time. In other words, doctrine of finality is the reason behind the law of limitation. 17. If the rights of the immovable properties are not to be adjudicated in a given matter only on the ground of limitation which is always considered as a technical reason it would result in injustice. As such, ground of limitation shall not be applied so strictly so as to deny the rights of a person in - 14 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 respect of an immovable property as such right would be terminated perpetually. 18. At the same time, the right accrued in the contesting respondent namely the plaintiff by not filing the appeal in time prescribed by the statute, cannot also be lost sight of while considering the request of the appellant. 19. Imposing reasonable costs to balance the rights of the appellant and the contesting respondent-plaintiff would meet the ends of justice in the peculiar facts and circumstances of the present case. 20. In the considered opinion of this Court, imposing the cost of Rs.50,000/- would be sufficient and appropriate to balance the rights of the parties in the given case. 21. Accordingly, without expressing any opinion on the merits of the matter, this Court is satisfied that if the order of the First Appellate Court dismissing the application for condonation of delay is set aside and allow the application for condonation of delay by imposing the cost of Rs.50,000/- and permit the appellant to urge the case on merits of the matter to meet the ends of justice. - 15 - HC-KAR NC: 2025:KHC:30617 RSA No. 955 of 2024 22. Accordingly, the following: ORDER (i) Regular Second Appeal is allowed. (ii) Order of the First Appellate Court on I.A.No.1 in R.A.No.17/2022 dated 01.06.2024 is hereby set aside. (iii) Consequently, I.A.No.1 filed in R.A.No.17/2022 is allowed, subject to payment of cost of Rs.50,000/- to the contesting respondent- plaintiff. (iv) Payment of costs is condition precedent for consideration of the appeal on merits. (v) Parties are directed to appear before the First Appellate Court without further notice positively on 10.09.2025. (vi) It is made clear that this Court has not expressed any opinion on merits of the matter. Sd/- (V SRISHANANDA) JUDGE MR