Karnataka High Court
Ramesh G Shet vs K S Manjunatha on 30 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30071
MSA No. 73 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 73 OF 2016 (RO)
BETWEEN:
RAMESH G. SHET
S/O GANAPATHI SHET
AGED ABOUT 58 YEARS
R/O 3RD CROSS
C.M.C QUARTERS
GARDEN AREA
SHIVAMOGGA-577 201
...APPELLANT
(BY SRI. ARAVIND DESAI, ADVOCATE)
AND:
K.S. MANJUNATHA
S/O SHETTY SHAMANNA
Digitally AGED ABOUT 51 YEARS
signed by R/O KACHINAKATTA VILLAGE
MALATESH TQ AND DIST
KC
SHIVAMOGGA-577 222
Location:
HIGH ...RESPONDENT
COURT OF (BY SRI. SANDESH T.B, ADVOCATE)
KARNATAKA
THIS MSA IS FILED U/O 43 RULE 1(u) OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 05.11.2015 PASSED IN
RA NO.91/2014 ON THE FILE OF THE II ADDL. SR. CIVIL
JUDGE, SHIVAMOGGA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 06.12.2013
PASSED IN OS NO.109/2008 ON THE FILE OF THE IV ADDL.
CIVIL JUDGE AND JMFC., SHIVAMOGGA. REMITTING BACK THE
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NC: 2024:KHC:30071
MSA No. 73 of 2016
MATTER TO THE TRIAL COURT TO PROCEED IN ACCORDANCE
WITH LAW.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Aravind Desai, learned counsel for the appellant and Sri Sandesh T.B., learned counsel for the respondent.
2. This second appeal is filed by the plaintiff in O.S.No.109/2008, on the file of IV Additional Civil Judge and JMFC., Shivamogga, challenging the order passed in R.A.No.91/2014, dated 05.11.2015, on the file of II Additional Senior Civil Judge, Shivamogga, remitting the matter to the Trial Court for fresh disposal in accordance with law.
3. Facts in brief which are utmost necessary for disposal of the second appeal are as under:
A suit came to be filed by the plaintiff for the relief of declaration and possession in O.S.No.109/2018. Initially suit came to be dismissed. Against which, plaintiff filed an appeal in R.A.No.119/2010.-3-
NC: 2024:KHC:30071 MSA No. 73 of 2016
4. Learned Judge in the First Appellate Court after considering the rival contentions of the parties remitted the matter to the Trial Court with few directions namely; to appoint a Court commissioner and also to permit the plaintiff to lead additional evidence.
5. Post remand, Trial Court complied the order of the First Appellate Court passed in R.A.No.119/2010 in part inasmuch as appointed the Taluka surveyor as the Court commissioner, but did not take into consideration the second direction issued by the appellate Court in R.A.No.119/2010 in taking the additional evidence and also to dispose of the matter by filing appropriate issue.
6. Thereafter, the learned Trial Judge part complying the directions issued in R.A.No.119/2010 decreed the suit of the plaintiff. Against which, the defendant filed an appeal in R.A.No.91/2014.
7. The contentions of the defendant that there was no proper compliance to the orders passed in R.A.No.119/2010 was accepted by the learned Judge in the First Appellate Court and also accepted the contentions urged on behalf of the -4- NC: 2024:KHC:30071 MSA No. 73 of 2016 defendant that there was no proper issues framed by the learned Trial Judge post remand and again set aside the judgment passed in O.S.No.109/2008 and allowed the appeal and again remitted the matter for fresh disposal in accordance with law, after affording the parties to lead additional evidence and also with a specific directions to frame an issue with regard to the limitation and adverse possession. It is the said order which is challenged in this second appeal.
8. Sri Aravind Desai learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that remitting the matter for the second time by the First Appellate Court has resulted in miscarriage of justice and sought for allowing the appeal.
9. Per contra, learned counsel for the respondent supports the impugned order.
10. Having heard the parties in detail, this Court perused the material on record meticulously.
11. On such perusal of the material on record it is crystal clear that the suit is of the year 2008. Suit is one for -5- NC: 2024:KHC:30071 MSA No. 73 of 2016 declaration and possession. Defendant has specifically contended in the written statement that the suit is barred by limitation as well as the adverse possession.
12. On perusal of the issues framed by the Trial Court, there is no issue framed by the Trial Court with regard to the limitation even though there is a specific plea taken by the defendant in the written statement.
13. Order XIV Rule 5 of Civil Procedure Code mandates that the Trial Court is bound to frame the issues where the parties on loggerheads.
14. Non framing of an issue with regard to the limitation has thus resulted in miscarriage of justice which was taken note of by the First Appellate Court in R.A.No.91/2014 and remitted the matter to the Trial Court for framing of additional issue with regard to the limitation and also permit the parties to make out their case on the additional issue as well as other issues, as the appellant herein had already filed an application under Order XLI Rule 27 Civil Procedure Code -6- NC: 2024:KHC:30071 MSA No. 73 of 2016 seeking to place additional evidence on record post remand the order in R.A.No.119/2010.
15. Therefore, remand order passed by the First Appellate Court which is impugned in this second appeal needs no interference by this Court by exercising the power vested in this Court under Order XLIII Rule 1 of Civil Procedure Code.
16. Having said thus, it is seen that no time limit is fixed by the First Appellate Court while remitting the matter to the Trial Court after framing the additional issue. Since the suit is of the year 2008 and the matter was remanded twice, some time limit has to be fixed for disposal of the suit.
Accordingly, following:
ORDER
(i) Miscellaneous second appeal stands disposed of by upholding the remand order.
(ii) However, the time is fixed for disposal of the case afresh in accordance with law till 31st of March 2025.-7-
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(iii) It is made clear that the Trial Court is bound to frame the additional issue with regard to the limitation and then afford suitable opportunities to the parties and then pass judgment and decree in accordance with law.
(iv) Parties shall appear before the Trial Court without further notice on 26th August, 2024.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 64