Karnataka High Court
B.C. Ramachandra Reddy vs B.M. Govinda Reddy on 29 July, 2024
Author: V Srishananda
Bench: V Srishananda
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MSA No. 72 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 72 OF 2016 (RO)
BETWEEN:
1. B.C. RAMACHANDRA REDDY
S/O LATE CHINNAPPA @
CHINNAPPA REDDY
AGED ABOUT 60 YEARS,
2. B.C. MUNI REDDY,
S/O LATE CHINNAPPA @
CHINNAPPA REDDY,
AGED ABOUT 56 YEARS
3. B.C. KRISHNA REDDY
(SINCE DIED BY HIS LR's)
3(A). SMT. ANUSUYA
W/O LATE B.C. KRISHNA REDDY
AGED ABOUT 50 YEARS
Digitally
signed by 3(B). SRI. B.K. RANJITH KUMAR
MALATESH
KC S/O LATE B.C. KRISHNA REDDY
AGED ABOUT 29 YEARS
Location:
HIGH
COURT OF 3(C) SRI. B.K. TRIVEN KUMAR
KARNATAKA S/O LATE B.C. KRISHNA REDDY
AGED ABOUT 27 YEARS
ALL ARE RESIDING AT NO.16
NEAR DAIRY, BIDARAGUPPE VILLAGE
ATTIBELE HOBLI, ANEKAL TALUK
BANGALORE URBAN DISTRICT-562 107.
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MSA No. 72 of 2016
...APPELLANTS
(BY SRI. RAVI L. VAIDYA, ADVOCATE)
AND:
1. B.M. GOVINDA REDDY
S/O LATE MUNISWAMY REDDY
AGED ABOUT 51 YEARS,
RESIDING AT BIDARAGUPPE VILLAGE AND POST
ATTIBELE HOBLI, ANEKAL TALUK
BANGALORE URBAN DISTRICT-562 107
2. SMT. VENKATAGIRIYAMMA
W/O LATE CHINNAPPA @ CHINNAPPA REDDY
(SINCE DECEASED BY HER LR's WHO ARE
ALREADY ON RECORD AS APPELLANT No.1, 2 AND
RESPONDENT NOS.3 TO 5)
3. SMT. RADHA
D/O LATE CHINNAPPA @ CHINNAPPA REDDY
AGED ABOUT 51 YEARS,
RESIDING AT MUDUGANAPALLI VILLAGE,
THUMMANAPALLI POST, BAGALUR HOBLI,
KRISHNAGIRI DISTRICT-635 103
4. SMT. VINODA
D/O LATE CHINNAPPA @ CHINNAPPA REDDY
AGED ABOUT 49 YEARS,
RESIDING AT VENKATARAMANA REDDY,
KADUGODI VILLAGE AND POST,
K.R.PURAM HOBLI,
BANGALORE EAST TALUK-560 067
5. SMT. BHARATHI
D/O LATE CHINNAPPA @ CHINNAPPA REDDY
AGED ABOUT 45 YEARS,
RESIDING AT ATTIBELE VILLAGE AND POST,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE URBAN DISTRICT-562 107.
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MSA No. 72 of 2016
6. SRI. NAGAPPA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS,
RESIDING AT BIDARAGUPPE VILLAGE AND POST,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE URBAN DISTRICT-562 107.
...RESPONDENTS
(BY SRI. B.V. BADRINATH, ADVOCATE FOR R1;
R3 TO R6 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED 18.12.2023 - R3 TO R5
ARE LRs OF DECEASED R2)
THIS MSA IS FILED UNDER ORDER XLIII RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
03.07.2015 PASSED IN RA NO.13/2010 ON THE FILE OF THE
III ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRUCT, SIT AT ANEKAL, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
04.02.2010 PASSED IN OS NO.246/2003 ON THE FILE OF THE
PRL. CIVIL JUDGE (JR.DN) AND JMFC., ANEKAL, REMANDING
BACK THE MATTER TO THE TRIAL COURT TO DISPOSE OF THE
SUIT IN ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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MSA No. 72 of 2016
ORAL JUDGMENT
Heard Sri Ravi L. Vidya, learned counsel for the appellants and Sri B.V. Badrinath, learned counsel for the respondent No.1.
2. This Second appeal is filed by the defendants in O.S.No.246/2003, on the file of Principal Civil Judge (Jr.Dn) and JMFC., Anekal, challenging the order of remand passed in R.A.No.13/2010, dated 03.07.2015, on the file of III Additional District and Sessions Judge, Bengaluru Rural District, Sit at Anekal.
3. Facts in brief which are utmost necessary for disposal of the present second appeal are as under:
First respondent B.M. Govinda Reddy, filed a suit in O.S.No.246/2003 for the relief of declaration. Suit on contest came to be dismissed by judgment dated 04.02.2010.
4. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in Regular Appeal No.13/2010.
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5. Learned Judge in the First Appellate Court after considering the rival contentions of the parties, came to the conclusion that the plaintiff has not made out any case for placing an additional evidence on record, nor for appointment of the Court commissioner for local inspection and rejected both the applications. However, opined that the Trial Court ought to have framed an issue with regard to the title to the suit property to be established by the plaintiff and remitted the matter to the Trial Court for fresh disposal in accordance with law.
6. Being aggrieved by the same, contesting defendant Nos.1 to 3 are before this Court.
7. Reiterating the grounds urged in the appeal memorandum, Sri Ravi L Vaidya, learned counsel for the appellants vehemently contended that the First Appellate Court erred in law in remitting the matter to the Trial Court for fresh disposal in accordance with law, without there being any conditions especially having found that there was no material evidence placed on record by the plaintiff which would be in a position to decide the title of the plaintiff and also taking into -6- NC: 2024:KHC:30070 MSA No. 72 of 2016 consideration the earlier proceedings between the parties which got finalized by this Court in RSA No.449/1995 and RSA No.1152/2002 and sought for allowing the appeal.
8. Per contra, Sri B.V. Badrinath, learned counsel for the respondents supports the impugned order.
9. Having heard the parties in detail this Court perused the material on record meticulously.
10. On such perusal of the material on record, it is crystal clear that in the very same order the learned Judge in the First Appellate Court dismissed the application filed by the contesting respondents under Order 41 Rule 27 CPC and under order 26 Rule 9 CPC.
11. Contesting respondents did not choose to file any appeal against the said order and therefore, insofar as the contesting first respondent is concerned, it has become final.
12. Thus, what remains before this Court now is to consider the fact that the improper framing of issue by the Trial Court especially when the suit is one for declaration filed by the plaintiff is justified or not.
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13. Therefore, learned Judge in the First Appellate Court was justified in directing that an additional issue to be framed with regard to the title in respect of the suit property to be established by the plaintiff on the available evidence on record. For that purpose, the matter was remitted to the Trial Court to adduce additional evidence by both the parties.
14. When the permission sought for by the plaintiff to place additional evidence is rejected, by rejecting the application filed under Order 41 Rule 27 CPC, permitting the parties to lead additional evidence would not arise. To that extent, impugned order suffers from legal infirmity calling for interference by this Court exercising the power vested under Order XLIII Rule 1 of Civil Procedure Code.
15. Further, since the First Appellate Court itself is the Court which could have raised the additional issue and decided the matter by itself especially when it has not permitted the parties to place additional evidence on record, there was no necessity of remitting the matter to the Trial Court. -8-
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16. Therefore, the said direction issued by the First Appellate Court to the Trial Court also needs interference by this Court in this appeal.
Accordingly, following:
ORDER
(i) Miscellaneous Second Appeal is allowed in part.
(ii) While upholding the order of the learned Judge in the First Appellate Court to frame an additional issue with regard to the title, remitting the matter to the Trial Court for the purpose of recording the additional evidence on additional issue by both the parties, is hereby set aside.
(iii) Further, the First Appellate Court itself can raise the additional issue based on the pleadings and the material evidence placed on record and dispose of the appeal in accordance with law.
(iv) The parties shall appear before the First Appellate Court without further directions on 9th August, 2024, without further notice.
(v) The First Appellate Court shall raise the issue with regard to the title as is found in the order. -9-
NC: 2024:KHC:30070 MSA No. 72 of 2016 Thereafter afford the parties to address their arguments on the additional issue and conclude the appeal in R.A.No.13/2010 on or before 31st October, 2024.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 64