- 1 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1406 OF 2024 (PAR) BETWEEN: SMT. PUTTAMMA AGED ABOUT 70 YEARS, W/O RENUKAPPA, D/O LATE BASAPPA, R/AT S. BASAVANAHALLI VILLAGE, SINGATAGERE HOBLI, KADUR TALUK, CHIKKAMAGALURU DISTRICT - 577 548. …APPELLANT (BY SRI. UMESH M.N, ADVOCATE) AND: 1. SRI. VASANTHAKUMAR AGED ABOUT 61 YEARS, S/O ONKARAPPA, 2. SRI OMKARAPPA, AGED ABOUT 71 YEARS, S/O LATE DODDALINGAPPA, 3. SRI SHEKARAPPA AGED ABOUT 84 YEARS, S/O LATE KALLAPPA 4. SRI. JAYALINGAMURTHY AGED ABOUT 71 YEARS, S/O LATE KALLAPPA 5. SMT. JAYAMMA AGED ABOUT 71 YEARS, D/O LATE BASAPPA Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 R/AT SHETTYHALLI SINGATAGERE HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT - 577 548. 6. SMT. RATHNAMMA AGED ABOUT 68 YEARS D/O LATE BASAPPA 7. SRI. PARAMESHWARAPPA AGED ABOUT 74 YEARS S/O LATE MAHADEVAPPA 8. SMT. GANGAMMA AGED ABOUT 66 YEARS W/O LATE SHIVANNA RESPONDENTS NO.1 TO 4 AND 5 TO 8 ARE ALL RESIDENTS OF S. BASAVANAHALLI VILLAGE, SINGATAGERE HOBLI, KADUR TALUK, CHIKKAMAGALURU DISTRICT - 577 548. …RESPONDENTS (VIDE ORDER DATED 10.07.25, NOTICE TO R2 TO R8 IS DISPENSED WITH; R1 - VASANTHAKUMAR - SERVED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 8.07.2024 PASSED IN RA NO.18/2018 ON THE FILE OF SENIOR CIVIL JUDGE, KADUR., DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 12.09.2007 PASSED IN OS NO.354/2001 ON THE FILE OF PRINCIPAL CIVIL JUDGE (J.D.), KADUR., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.M.N.Umesh, learned counsel for the appellant. None appears for respondent No.1 who is the contesting respondent and respondent Nos.2 to 8 are the co-defendants and notice of the appeal is dispensed to them at the risk of the appellant. 2. Appellant – Puttamma filed an appeal in RA No.18/2018 questioning the validity of the judgment and decree passed in O.S.No.354/2001. She was a party/defendant No.5 in the said suit and engaged the services of an Advocate which according to her is incorrect as she did not know pendency of the suit still she received the notice in Final Decree Proceedings in the year 2017. 3. As per the genealogy produced in the suit, one Doddalingappa was the common prepositus and had the wife by name Kenchamma. Couple had seven children - 4 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 namely Kallappa, D.Basappa, Mahadevappa, Parameshwarappa, Jayanna, Shivanna and Onkarappa. 4. Present appellant is the daughter of said second son namely Doddalingappa namely D.Basappa. According to the plaintiff in O.S.No.354/2001, he is the last son of Doddalingappa namely Onkarappa. 5. Suit was decreed ex-parte as defendant Nos.1, 2, 3, 6 and 8 did not choose to appear before the Trial Court and present appellant who was defendant No.5, though appeared, did not choose to file any written statement. 6. Learned Trial Judge raised necessary points after recording the evidence of the plaintiff and decreed the suit by granting 1/10th share in the suit properties in favour of the plaintiff. 7. No doubt, a belated Final Decree Proceedings came to be filed in FDP No.06/2017. It is the contention of the appellant that when the notice was received by her - 5 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 in FDP No.06/2017, she came to know about the suit and she being impersonated and was represented before the Trial Court by an Advocate by name H.Thippesh. 8. Immediately, she applied for certified copies of the suit papers and filed an appeal challenging the validity of the judgment and decree passed in O.S.No.354/2001 by filing an application under Section 5 of the Limitation Act to condone the huge delay of 10 years 8 months 18 days. 9. Learned Judge in the First Appellate Court after issuing the notice, entertained the objections filed by contesting respondent No.1/plaintiff and heard the arguments of the parties and dismissed the application filed under Section 5 of the Limitation Act by holding that H. Thippesh, learned Advocate had represented defendant No.5 in the suit and dismissed the application filed for condonation of delay by following the decision of the Hon’ble Apex Court in the case of Ram Nath Sao @ Ram - 6 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 Nath Sahu and Others v. Gobardhan Sao and Others in (Civil)1704/2022 dated 27.02.2002. 10. Being further aggrieved by the same, defendant No.5 is before this Court, in this appeal on following grounds and raising substantial questions of law: GROUNDS “The Hon'ble Trial Court and Hon'ble First Appellate Court has not at all properly appreciated all the facts and circumstances of the case in question, and have passed the impugned Judgments in a mechanical manner, without proper application of thought or mind, as such the impugned Judgments are liable to be set aside. Both The Hon'ble First Appellate Court and Hon'ble Trial Court have not all considered the contentions put forth by defendant No.5 that she was not served with summons/notice and the plaintiff got filed the vakalath of defendant No.5 by forging her signature in order to have wrongful gain by misleading the Hon'ble Court which is absolutely illegal and oppose to law, as such the impugned Judgments are liable to be set aside. - 7 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 The Hon'ble First Appellate Court and Hon'ble Trial Court have failed to appreciate the fact that the 7 sons of Doddalingappa had already partitioned their properties vide M.R.No.42/1973-74 and the said M.R.No.42/1973-74 was challenged before Deputy Commissioner, Chikkamagalur in R.P.No.40/2001-02 which was allowed by setting aside the order in R.A.No.27/1998-99 of Assistant Commissioner, Tarikere vide order No.40/2001-02, dated 28-08-2001 and as a result of which the aforesaid M.R.No.42/1973-74 has been upheld and got their share of properties mutated accordingly and have been in possession and enjoyment over their respective share of properties. As such the impugned Judgments are liable to be set aside. As per the entries in M.R.No.42/1973-74, the father of plaintiff l.e., Omkarappa was allotted the properties bearing Sy.No.157/2 measuring 20 guntas, Sy.No.132/P measuring 2 acres, Sy.No.146/1CP measuring 1 acre 30 guntas, Sv. No.281 measuring 2 acres 30 guntas and Sy.No. 277/P measuring 2 acres 10 guntas as his share. The plaintiff is entitled to claim his share in respect of the aforesaid properties that belongs to his father 1.e., Omkarappa but the plaintiff is claiming the properties of defendant No.5 to deceive and defraud the defendant No.5 which is absolutely - 8 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 strange and illegal claim. As such the impugned judgements are llable to be set aside. The Hon'ble trial court and First Appellant Court have failed to appreciate the fact that item no.1 & 2 of the plaint schedule properties have been allotted to the share of Basappa S/e Doddalingappa i.e., father of defendant No.5 vide M.R.No.42/1973-74. Since Basappa did not have male issues, he made arrangements for defendant No.5 to take care of her parents and properties and settled in parental house and allotted lands in Sy.No. 125/P2 measuring 1 acre 22 guntas, Sy.No.46/1CP measuring 4 aces 25 guntas, Sy.No.276/p measuring 2 acres 12 guntas and house and site/hittal properties to the share of defendant No.5. Subsequently, on being incited by some trouble, defendant No.S's father started troubling her and denying the title over the properties allotted to the share of defendant No.5. Hence, defendant No.5 had filed a suit In O.S.No.575/1997 against her father Basappa on the file of the Hon'ble Civil Judge Junior Division, Kadur, for the relief of declaration and consequential relief of permanent injunction and ultimately the suit in O.S.No.575/1997 was decreed as per the compromise petition and it was decreed on 2- 03-1998. Therefore, the plaint schedule item No.1 & 2 properties have been the properties of defendant No.5 - 9 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 vide decree in O.S.No.575/2017. Further the younger sister of defendant No.5 Smt. B.Rathnamma challenged the decree in O.S.No.575/1998 on the file of Hon'ble Senior Civil judge, Tarikere in RA.No.43/1998 and it was also compromised as per the compromise petition dated 28-11-1998 and accordingly remaining properties of Basappa were allotted to the share of remaining sisters of defendant No.5 and it was decreed that defendant No.5 has been allotted with the properties stated in the decree in O.S.No 575/1997. As such the impugned judgements are liable to be set aside. The Hon'ble trial court and First Appellate Court have erred in appreciating the fact that the plaintiff is in no way entitled to the share in the plaint schedule properties particularly item No.1 & 2 as he is stranger to the branch of defendant No.5's family and moreover by keeping the defendant No.5 in dark, he obtained the un-executable decree and filed the petition for F.D.P after a span of 9 1/2 years for the reasons best known to him and as such the impugned. judgements are liable to be set aside. The trial court and First Appellate Court have erred in dismissing the objections in FDP No.6/2017 and an application for condonation of delay filed by defendant No.5 in R.A.18/2018 without even considering the - 10 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 specific contention that final decree proceedings were initiated only after lapse of 9 years and only after the notice was issued in the said FDP, she came to know about the proceedings, as such there was no delay in filing the appeal which is lost sight off by the trial courts. The Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors, reported in (1987) 2 SCC 107 has held as hereunder: "The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits'. The expression sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: - 11 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by - 12 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal." Thus, the Hon'ble trial court and First Appellate Court have failed to consider the principles laid down in the above Supreme Court Judgement and the trial court and First Appellate Court have dismissed the appeal without considering the sufficient cause made out by defendant No.5 and as such the impugned judgements are liable to be set aside. Viewed, from any angle, the impugned Judgments are otherwise opposed to all law, facts, probabilities and equities of the case in question, as such the same is liable to be set aside. - 13 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 SUBSTANTIAL QUESTIONS OF LAW “a) Whether the court below is right in dismissing the application for condonation of delay in view of the law laid down by the Hon'ble Supreme Court reported in (1987) 2 SCC 107? b) Whether the first appellate court was right in law in holding that the appeal filed by the appellant is barred by law especially in view of the fact that the plaintiff filed the FDP proceedings after the lapse of 9 1/2 years from the date of decree?” 11. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that defendant No.5 did not engage the services of H.Thippesh, learned Advocate to represent her before the Trial Court in O.S.No.354/2001 and she has been impersonated and a vakalath was filed through the said Advocate. 12. It is pertinent to note that not only defendant No.5 but also defendant No.7 did engage the services of an Advocate but failed to file any written statement. - 14 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 13. Learned counsel for the appellant would contend that there was a previous partition and father of the plaintiff had been granted share in the previous partition against which an appeal was filed before the Assistant Commissioner. Learned Assistant Commissioner having cancelled the mutation entries, parties appeared before the Deputy Commissioner and got the mutation entries restored whereby one can safely infer that the suit properties were already partitioned. As such, there was no scope for second partition in respect of suit properties which has been ignored by the learned Trial Judge. Plaintiff also suppressed the said aspect of the matter and therefore, there is a valid case for the appellant to put forth a defence and sought for admitting the appeal for further consideration. 14. He would further contend that dismissing the appeal filed by the appellant only on the ground of delay has resulted in grave miscarriage of justice inasmuch as rights of the immovable properties stood impaired - 15 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 permanently only on the technical reasons of delay and sought for admitting the appeal for further consideration. 15. Having heard the arguments of learned counsel for the appellant, this Court bestowed its best attention to the material placed on record along with the appeal memorandum. Photocopy of the mutation register extract came to be filed which is incomplete as is submitted by learned counsel for the appellant himself. 16. No doubt, photocopy of the order passed by the Assistant Commissioner and the District Commissioner is annexed along with the appeal papers. What prevented defendant No.5 to file written statement before the Trial Court is not explained by the appellant except stating that she was impersonated. 17. No affidavit of H.Tippesh, learned Advocate who represented her before the Trial Court is filed nor he has been summoned before the First Appellate Court seeking - 16 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 the First Appellate Court to hold an enquiry with regard to the alleged impersonation. 18. It is also to be noted that there was a long silence on the part of the appellant as well as the original plaintiff for more than ten years after the decree came to be passed by the learned Trial Judge. 19. Final Decree Proceedings was admittedly initiated in the year 2017. It is the contention of the appellant that she came to know about decreeing of the suit only when she received notice in the Final Decree Proceedings. 20. No action has been taken atleast by issuing a notice to H.Thippesh, learned Advocate who said to have appeared on behalf of the appellant before the Trial Court nor any effort is made to find out who impersonated her before the Trial Court. 21. When there is a vakalath duly filed representing that it is the appellant who has engaged the services of - 17 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 H.Thippesh, this Court cannot easily brush aside such vakalath in the absence of any positive material placed on record to show that appellant has been really impersonated before the Trial Court. 22. No complaint to the police is filed with regard to the alleged impersonation. Long silence on the part of the appellant and not taking any positive action against the Advocate who said to have represented her, exposes the hollowness in the claim of the appellant. 23. Learned Judge after taking note of the principles of law enunciated by the Hon’ble Apex Court in the case of Ram Nath Sao referred to supra, rightly rejected the belated appeal where there is a huge delay of 10 years 8 months 18 days. 24. Moreover what has been granted is 1/10th share in the suit property assuming that Vasanathakumar being the son of Onkarappa has got any share in the previous partition, it is always open for the appellant herein to seek - 18 - HC-KAR NC: 2025:KHC:32036 RSA No. 1406 of 2024 for necessary orders in the Final Decree Proceedings as admittedly a share is also available for D.Basappa and his branch. 25. Reserving such liberty for the appellant to urge for equitable partition in the pending Final Decree Proceedings, this Court is of the considered opinion that appeal grounds are not sufficient to admit the appeal on the aforesaid substantial questions of law raised in the appeal memorandum. 26. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 85 CT: BHK