Laxmibai vs Jagadevappa and Others

B. Sreenivas Gowda, J—This appeal is preferred by the respondent in Civil Misc. No. 23/2013, challenging the order of the first appellate Court in allowing the said Civil Misc. and thereby setting aside the judgment and decree passed in R.A. No. 48/2012.

Heard the learned Counsel appearing for the appellant and perused the impugned judgment.

Along with the appeal, an application under Sec. 5 of the Limitation Act is filed, praying to condone delay of 415 days in filing the appeal.

In the affidavit filed in support of the delay application, except attacking the impugned order on the ground that there was no reason for the lower appellate Court to allow the appeal and set aside the judgment and decree passed in R.A. No. 48/2012, the appellant has not offered any reason, much less valid reason, for condoning the inordinate delay of 415 days in preferring this appeal. It is not the case of the appellant, that he is not aware of the impugned order and that there is no reason for condoning delay of 415 days in filing the appeal. The delay application is liable to be dismissed as devoid of merits.

Even on merit, the appellant filed a suit in O.S. No. 6/2007 before the Court of Senior Civil Judge and JMFC, Sindagi, for declaration that the sale deed dt. 26-06-1990 alleged to have been executed by the, deceased Shakambarevva in favour of the defendants is null and void and non-est and title vests with the plaintiff and consequently for permanent injunction, restraining the defendants from causing obstruction and interfering with his peaceful possession and enjoyment of the suit land. Suit came to be dismissed on 30-01-2012. The appellant aggrieved by the dismissal of the suit, challenged the said judgment and decree of the trial Court in R.A. No. 48/2012 before the I Additional District and Sessions Judge, Bijapur. The first appellate Court allowed the appeal and decreed the suit. Respondents aggrieved by the said judgment and decree passed in R.A. No. 48/2012 in allowing the appeal and decreeing the suit of the plaintiff, challenged the same by preferring Civil Misc. No. 23/2013. The lower appellate Court by impugned judgment allowed the miscellaneous petition and set aside the judgment and decree passed in R.A. No. 48/2012 and restored the appeal to the file for rehearing by imposing cost of Rs. 500/- on the defendants/respondents.

Grievance of the plaintiff appellant is, defendants had entered caveat in R.A. No. 48/2012 and they were represented through an advocate and thereafter, they did not choose to appear and therefore, the lower appellate Court ought not to have allowed the Misc. petition and set aside the judgment and decree passed in R.A. on merit, by relying upon the judgment in the case of G.P. Srivastava v. R.K. Raizada in Civil Appeal No. 1934-35 of 2000. The contention of the learned Counsel for the appellant - plaintiff is, when once defendants - respondents had entered caveat in the regular appeal before the Sessions Court and engaged a lawyer, there was no sufficient reason for the lower appellate Court to allow the said petition and set aside the judgment and decree passed in the R.A. on merit.

It is not in dispute that suit of the plaintiff was dismissed by the trial Court and it is against dismissal of her suit, she preferred R.A. No. 48/2012 before the lower appellate Court. It is also not in dispute, the respondent in R.A. though engaged an advocate, did not contest the appeal and appeal was allowed and suit came to be decreed and that judgment and decree passed in R.A. is an ex parte decree. The lower appellate Court relying upon the judgment of the Hon''ble Supreme Court in the aforesaid civil appeal, has thought it fit that an opportunity has to be given to the defendants - respondents and in that background, it has allowed the Civil Misc. petition and set aside the judgment and decree passed in R.A. and admitted the appeal for rehearing.

I have carefully gone through the impugned order passed in Civil Misc. petition and do not find any error warranting interference.

Hence, both delay application as well as appeal are dismissed as devoid of merits.