Karnataka High Court
Sri K Thimmappa vs Smt Puttarangamma on 2 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:25017
RSA No. 421 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 421 OF 2015 (INJ)
BETWEEN:
SRI K THIMMAPPA
AGED ABOUT 85 YEARS
S/O GANGASAMUDRADA KARIYAPPA
R/O PRASANNA TALKIES ROAD
CHITRADURGA-577501
...APPELLANT
(BY SRI. K K VASANTH.,ADVOCATE)
AND:
1. SMT PUTTARANGAMMA
AGED ABOUT 58 YEARS
D/O RANGAPPA
R/AT KAVADIGARA HATTI
CHITRADURGA TALUK
CHITRADURGA-577501
Digitally signed
by JAYANNA SINCE DECEASED BY HIS LR
NARAYANAPPA
LAKSHMAMMA
Location: HIGH 2. SMT P V SNEHALATHA
COURT OF AGED ABOUT 35 YEARS
KARNATAKA D/O P S JAYDEVAPPA @ JAYANNA
W/O P S VEERESH
R/AT VARASIDDHI KRUPA
DAVALAGIRI BHADAVANE
1ST STAGE, BHEEMASAMUDRA ROAD
CHITRADURGA CITY-577501
...RESPONDENTS
(BY SRI. MANJUNATH B.K., ADVOCATE FOR R1 & R2)
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NC: 2024:KHC:25017
RSA No. 421 of 2015
THIS RSA FILED UNDER SEC.100 OF CPC., PRAYING TO CALL
FOR RECORDS IN O.S.NO.16/2004, ON THE FILE OF THE I ADDL.
CIVIL JUDGE (JR. DN), CHITRADURGA AND IN R.A.NO.19/206 ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA,
HEAR THE PARTIES AND PASS A JUDGMENT AND DECREE TO SET
ASIDE THE JUDGMENT AND DECREE DATED 5.1.2006 PASSED IN
O.S.NO.16/2004 BY I ADDL. CIVIL JUDGE (JR. DN.) CHITRADURGA
AND ALSO JUDGEMENT AND DECREE DATED 14.11.2014 IN R.A
NO.19/2006 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE,
CHITRADURGA AND TO PASS SUCH AN ORDERS AS THIS HON'BLE
COURT DEEMS FIT TO PASS, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The Appellant is before this Court seeking for the following relief:
"Call for records in O.S.No.16/2004, on the file of the I Addl. Civil Judge (Jr. Dn), Chitradurga and in R.A.No.19/206 on the file of the I Addl. Senior Civil Judge, Chitradurga, hear the parties and pass a judgment and decree to set aside the judgment and decree dated 5.1.2006 passed in O.S.No.16/2004 by I Addl. Civil Judge (Jr. Dn.) Chitradurga and also judgement and decree dated 14.11.2014 in R.A No.19/2006 passed by the I Addl. Senior Civil Judge, Chitradurga and to pass such an orders as this Hon'ble Court deems fit to pass, in the interest of justice and equity."
2. The appellant - plaintiff had filed O.S.No.16/2004 before the I Additional Civil Judge (Jr.Dn.), Chitradurga for relief of permanent injunction as also mandatory injunction to demolish the illegal -3- NC: 2024:KHC:25017 RSA No. 421 of 2015 construction put up by the defendant in the suit schedule property. The said suit came to be dismissed vide judgment and decree dated 05.01.2006 which came to be challenged in R.A.No.19/2006 before the I Additional Senior Civil Judge, Chiradurga, which also came to be dismissed vide judgment 14.11.2014.
3. When the matter was taken up for arguments, none appeared for the respondents. During the course of arguments, Sri.K.K.Vasanth, learned counsel for the appellant submits that the trial Court has considered Exs.P1 to P8 and the first Appellate Court has also considered Exs.P1 to P12 and as also made a reference to Ex.P17. A perusal of trial Court records indicates that 31 documents were marked by the plaintiff as Ex.P1 to Ex.P31. Neither the trial Court nor the first Appellate Court has considered Ex.P18 to Ex.P31. In fact, the trial Court in its judgment has come to a conclusion that the document marked as -4- NC: 2024:KHC:25017 RSA No. 421 of 2015 Ex.P13 had not been produced before it. This is apparently for the reason that the trial Court had considered that only Ex.P1 to P8 had been marked before it.
4. In view of the above peculiar situation, I am left with no option but to remand the matter to the trial Court directing the trial Court to consider all the exhibits which have been marked in accordance with law as also to consider any application filed by the parties. In that view of the matter, I pass the following:
ORDER
i) The appeal is allowed on technicality.
ii) The judgment and decree dated 14.11.2014 passed in R.A.No.19/2006 by the I Additional Senior Civil Judge, Chitradurga as also the judgment and decree dated 05.02.2006 in O.S.No.16/2004 passed by I Additional Civil Judge (Jr.Dn.), Chitradurga are set aside.
iii) The matter is remanded to the I Additional Civil Judge (Jr.Dn.), Chitradurga to decide the -5- NC: 2024:KHC:25017 RSA No. 421 of 2015 matter afresh in terms of the above observations as expeditiously as possible by issuing fresh notice to the respondents as also providing opportunity to the parties.
Sd/-
JUDGE PRS List No.: 1 Sl No.: 26