Karnataka High Court
Sri. B. Revappa vs Smt. Igooru Kalamma on 29 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30074
MSA No. 29 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.29 OF 2016 (RO)
BETWEEN:
1. SRI. B. REVAPPA
S/O. DODDASIDDAPPA,
AGED ABOUT 56 YEARS,
AGRICULTURIST,
R/O. HAMPAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
2. SRI. B. NINGAPPA
S/O. DODDASIDDAPPA,
AGED ABOUT 49 YEARS,
AGRICULTURIST,
R/O. HAMPAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
...APPELLANTS
(BY SRI VIGNESHWARA S. SHASTRY, SR. COUNSEL
Digitally ALONGWITH SRI GURURAJ.R, ADVOCATE)
signed by
MALATESH AND:
KC
Location: 1. SMT. IGOORU KALAMMA
HIGH W/O. IGOORU HANUMANTHAPPA,
COURT OF
KARNATAKA AGED ABOUT 70 YEARS,
AGRICULTURIST,
R/O. HAMPAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
2. SRI. JYOTHI KOTRAPPA
S/O. KALAPPA,
AGED ABOUT 69 YEARS,
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MSA No. 29 of 2016
AGRICULTURIST,
R/O. MUTTIGE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
3. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT,
DAVANAGERE-577 001.
...RESPONDENTS
(BY SRI S RAJEBNDRA FOR SRI S.V.PRAKASH, ADVOCATE FOR
R1;
R2(A) AND R2(B) ARE SERVED AND UNREPRESENTED;
SRI T.P.MALIPATIL, AGA FOR R3)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
19.12.2015 PASSED IN RA NO.2/14 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, HARAPANAHALLI, ALLOWING
THE APPEAL AND FILED AGAINST JUDGMENT AND DECREE
DATED 10.12.2013 PASSED IN O.S.NO 137/2010 ON THE FILE
OF THE CIVIL JUDGE & JMFC HARAPANAHALLI REMANDING
THE MATTER TO THE TRIAL COURT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
This Miscellaneous Second Appeal is filed by the Respondent Nos.2 and 3 in RA No.2/2014 on the file of the Senior Civil Judge and JMFC, Harapanahalli, who were defendants in O.S.No.137/2010 on the file of the Civil Judge and JMFC, Harapanahalli, whereby judgment passed in R.A -3- NC: 2024:KHC:30074 MSA No. 29 of 2016 No.2/2014 remitting the matter to the Trail Court for fresh disposal in accordance with law is challenged.
2. Heard Sri Vighneshwar S. Shastri, learned Senior Advocate for the appellants and Shri Rajendra, advocate, for Sri S.V. Prakash, learned counsel for the respondents.
3. Facts in brief which are utmost necessary for disposal of the present Second Appeal are as under:
A suit came to be filed in O.S No.137/2010 on the file of the Civil Judge and JMFC, Harapanahalli, in respect of agricultural land situated in K.Kallahalli village, Telagi Hobli, Harapanahalli taluk in Sy.No.81/1 measuring 4 acres 53 cents bounded on the East by remaining land at Sy.No.81/1, West by land belonging to Halamma, North by forest and South by land belonging to Olekar Bharmappa (hereinafter referred to as 'suit property') for the relief of declaration and cancellation of registered sale deed.
4. Suit on contest came to be dismissed by the judgment dated 10.12.2013. Being aggrieved by the same plaintiff filed the appeal in R.A.No.2/2014.
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5. Learned Appellate Judge, after securing the records inter alia, noticed that two applications came to be filed by the plaintiff, one for amendment of pleadings and one for placing additional evidence, and considering the same on merits, allowed those two applications and remitted the matter to the trial Court for fresh disposal in accordance with law, insofar as O.S.No.137/2010.
6. Being aggrieved by the same respondent Nos.2 and 3 have preferred this appeal.
7. Sri Vighneshwara S Shastri, learned Senior Advocate representing the appellants contended that it is settled principles of law and requires no emphasis that if the First Appellate Court is having the mechanism to record the evidence, in such cases, first appellate court should be slowed down in remitting the matter to the Trial Court unless it is very much necessary to remit the matter to the trial court for fresh disposal.
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8. In this regard, he placed reliance on the judgment of this Court in the case of Shanthaveerappa vs. K.N. Janardhanachari reported in 2006 SCC Online Kar 730.
9. He also contended that the trial Court has rightly raised the issue with regard to limitation as well as res judicata and therefore the present amendment that has been allowed by First Appellate Court would definitely affect the rights of the present appellants even after the matter is remitted to the trial Court and as such, the order of the learned Judge in the First Appellate Court needs interference by this Court.
10. Per contra, learned counsel for the respondents supports the impugned judgment.
11. Sri T.P.Malipatil, learned Additional Government Advocate representing respondent No.3, who was respondent No.4 in the First Appellate Court, contends that Government is a formal party and suitable orders be passed.
12. Having heard the parties in detail, there is sufficient force in the argument put forth on behalf of the appellants that first -6- NC: 2024:KHC:30074 MSA No. 29 of 2016 appellate Court ought not to have remitted the matter that too by open remand.
13. Nevertheless, first Appellate Court having allowed the application for amendment of the pleadings and permitted the plaintiff to lead additional evidence and also directed to frame additional issue if need be with regard to possession of the property. Since no time limit is fixed by the impugned order, it is just a necessary for this Court to modify the order of the first appellate Court by imposing few conditions whereby, even appellants will have an opportunity of fair trial.
14. Accordingly, the following:
ORDER
(i) Appeal stands disposed of.
(ii) Order passed by the first appellate Court in R.A.No.2/2014 is modified as under:
Remitting the matter to the trial court for fresh disposal after allowing IA Nos.2 and 3 filed by appellants, who is the contesting respondent in this case, is maintained. -7-
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(iii) But, cost of Rs.5,000/- is enhanced to Rs.20,000/-
payable by respondent No.1 to the contesting respondents who are appellants herein and time limit for fresh disposal of O.S No.137/2010 is fixed till 31st December, 2024.
(iv) It is further made clear that admissions, if any, made by the parties shall not be permitted to be withdrawn.
Sd/-
(V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 62