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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 1^ST DAY OF OCTOBER, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

R.S.A.NO.10/2020 (PAR)

BETWEEN:

S.G. SHIVAKUMAR,

S/O LATE S.M.GANGADHARAIAH,

AGED ABOUT 64 YEARS,

AGRICULTURIST,

RESIDENT OF DODDASAGGERE,

HOLAVANAHALLI HOBLI,

KORATAGERE TALUK,

TUMAKURU DISTRICT-572 121.

& APPELLANT

[BY SRI A.V. GANGADHARAPPA, ADVOCATE]

AND:

1.

SMT. SARVAMANGALAMMA,

W/O GANGADHARAIAH,

D/O LATE S.M. GANGADHARAIAH,

AGED ABOUT 70 YEARS.

2.

SMT.JAYAMMA,

D/O LATE S.M.GANGADHARAIAH,

AGED ABOUT 66 YEARS.

BOTH ARE RESIDENTS OF DODDASAGGERE,

HOLAVANAHALLI HOBLI,

KORATAGERE TALUK,

TUMAKURU DISTRICT-572 121.

3.

SMT. RENUKA,

D/O SOMASHEKHAR,

W/O KUMARASWAMY,

2

AGED ABOUT 35 YEARS,

RESIDING AT SHIVAKRUPA,

NO.365A, 9^TH CROSS,

WEST OF CHORD ROAD,

INDUSTRIAL TOWN,

BENGALURU-560 044.

4.

SOMASHEKHAR,

S/O SREEKANTAIAH,

(HUSBAND OF RATHNAMMA AND

FATHER OF PLAINTIFF NO.4),

AGED ABOUT 68 YEARS,

PRESENTLY RESIDENT OF

PUTTASANDRA VILLAGE,

PATHGENAHALLI POST,

KORATAGERE TALUK,

TUMAKURU DISTRICT-572 121.

... RESPONDENTS

[BY SRI A.C. MANJUNATHA, ADVOCATE FOR R-1 & R-3;

SRI G.C. SHANMUKHA, ADVOCATE FOR R-2;

R-4 IS SERVED]

THIS R.S.A IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGEMENT AND DECREE DATED 11.08.2010

PASSED IN R.A.NO.57/2009 ON THE FILE OF THE PRESIDING

OFFICER, FAST TRACK COURT-V AT MADHUGIRI, DISMISSING

THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE

DATED 02.03.2009 PASSED IN O.S.NO.147/2003 ON THE FILE

OF THE CIVIL JUDGE (SR.DN.) AND JMFC, MADHUGIRI.

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

J U D G M E N T

This matter is listed for admission today along with

I.A.No.1/2020 for condonation of delay of 3342 days in filing the

appeal and the statement of objections.

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2.

When the matter was listed before this Court on

01.09.2021, the learned counsel for the appellant was directed

to produce the documents with regard to the appellant having

taken treatment for cancer from 2008 to till date after hearing

both the learned counsel, since there was a delay of 3342 days

in filing the appeal. Again the matter was listed on 15.09.2021

and the learned counsel for the appellant sought time to produce

the documents as directed earlier and this Court granted time till

this day.

3.

This Court earlier having heard the matter, directed

the learned counsel for the appellant to produce the documents

to show that the appellant having taken treatment for cancer

from 2008 till date. The same is not placed before the Court.

Having

considered

the

reasons

mentioned

in

the

delay

application, which is filed along with the appeal, the reasons

assigned in paragraph No.3 of the affidavit is that on account of

suffering from cancer, he could not effectively participate in the

proceedings before the Trial Court and the Trial Court

erroneously passed the decree by placing him exparte. It is also

sworn to that the respondents have filed the final decree

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proceedings in FDP No.9/2009 to effect the partition by metes

and bounds and he has stated that he contested the

proceedings. In the final decree proceedings, an order came to

be passed on 28.08.2019 and he had challenged by preferring

W.P.No.50895/2019. After noticing the anomalous situation

created in the impugned judgments and decrees of the courts

below, the Hon9ble High Court by order dated 22.11.2009 was

pleased to dismiss the writ petition, reserving liberty to the

appellant to avail the appellate remedy. The High Court directed

the FDP Court to keep the proceedings in abeyance for a period

of five weeks to enable him to file the appeal. Thereafter, this

appeal is filed before this Court on 03.01.2020. It is also sworn

to in the affidavit that he is a rustic villager and not conversant

with the legal implications. In fact, in the final decree

proceedings in FDP No.9/2009, the Cour