Karnataka High Court
Sri H S Govindaraju vs Sri H N Lakshmana on 31 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30180
MSA No. 8 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 8 OF 2018
BETWEEN:
SRI H S GOVINDARAJU,
S/O. LATE SEENAPPA,
AGED ABOUT 37 YEARS,
R/O. RAMAMANDIRA ST,
HALAGUR, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
...APPELLANT
(BY SRI. M B CHANDRA CHOODA.,ADVOCATE)
AND:
1. SRI. H N LAKSHMANA,
S/O. NARASIMHAIAH,
AGED ABOUT 53 YEARS,
Digitally signed R/O. MUSLIM BLOCK, HALAGUR,
by SHARADA MALAVALLI TALUK,
VANI B MANDYA DISTRICT - 571 430.
Location: HIGH
COURT OF
KARNATAKA 2. SMT. SHAKEELA BHANU,
W/O. LATE. AMJAD PASHA,
AGED ABOUT 45 YEARS,
3. SUMAYYA BHANU,
D/O. LATE. AMJAD PASHA,
AGED ABOUT 25 YEARS,
4. THASMIYA BHANU
D/O. LATE. AMJAD PASHA,
AGED ABOUT 23 YEARS,
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NC: 2024:KHC:30180
MSA No. 8 of 2018
RESPONDENTS NO. 2 TO 4 ARE
R/O HALAGUR, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
5. SRI. B G SIDDAPAJI,
S/O NOT KNOWN TO THE APPELLANT,
AGED :MAJOR,
EXCISE CONTRACTOR,
BELAKAVADI VILLAGE,
BG PURA HOBI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
...RESPONDENTS
(BY SRI. R S RAVI., SENIOR ADVOCATE FOR
SRI. L RAJA., ADVOCATE FOR R1;
R2, R4 & R5 ARE SERVED AND UNREPRESENTED;
V.C.O DATED 31/10/2023 NOTICE TO R3 IS HELD
SUFFICIENT)
THIS MSA FILED UNDER ORDER 43 RULE 1(U) OF THE
CPC, AGAINST THE JUDGMENT AND DECREE DATED
17.11.2017 PASSED IN R.A.NO.12/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE MALAVALLI, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 22.01.2014 PASSED IN O.S.NO.2/2008 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE & JMFC, MALAVALLI AND
REMITTING THE MATTER BACK TO THE TRIAL COURT FOR
FRESH DISPOSAL.
THIS MSA COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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MSA No. 8 of 2018
ORAL JUDGMENT
Heard Sri M.B.Chandra Chooda, learned counsel for the appellant and Sri R.S.Ravi, learned Sr. Advocate for the respondent.
2. This second appeal is filed challenging the judgment dated 17.11.2017 passed in R.A.No.12/2014 remitting the matter to the trial court for considering the additional evidence and also to frame additional issues.
3. Facts in brief which are utmost necessary for disposal of the appeal are as under:
The case came to be filed by the plaintiff that he is the absolute owner in possession of the suit property having purchased the same from Kunnappa s/o Obegowda on 31.03.1999 under registered sale deed. Thereafter, he applied for conversion of the land into non-agricultural purpose by filing necessary application before the Assistant Commissioner, Mandya. The said application was allowed and the land which was in possession of the -4- NC: 2024:KHC:30180 MSA No. 8 of 2018 plaintiff was converted to non-agricultural purpose. It is further contended that the suit land was abating to Kollegala-Kanakpura National Highway and when the application was filed to transfer the revenue entries to Grama Panchayat, Halagur, the 1st Defendant being the money lender and also into chit fund business, 2nd Defendant being the owner of wine shop, started interfering with the peaceful possession and enjoyment of the suit property resulting in the plaintiff approaching the court for relief of declaration and consequential reliefs.
The suit on contest came to be dismissed.
4. Being aggrieved by the same, the plaintiff filed appeal before the Civil Judge, Sr. Division,Malavalli which was numbered as R.A.No.12/2014.
5. The learned Judge of the First Appellate Court after considering the rival contentions of the parties and on securing the records, allowed the appeal and remitted the matter to the trial court for recording additional -5- NC: 2024:KHC:30180 MSA No. 8 of 2018 evidence and also to frame additional issue and thereafter fro fresh disposal in accordance with law.
6. Being aggrieved by the same, the 2nd respondent who was the 2nd defendant before the trial court, preferred the present appeal.
7. Sri M.B.Chandra Chooda, learned counsel reiterating the grounds urged in the appeal memorandum contended that since the First Appellate Court had the mechanism of recording the additional evidence and the additional document that has been placed on record is nothing but a non-cognizable report in respect of a criminal complaint said to have been given by the plaintiff to the jurisdictional police and only for that purpose, the matter should not have been remitted to the Trial Court.
8. He also pointed out that what is the additional issue on which the First Appellate Court remitted the matter to the Trial Court is also not spelt out in the order of the First Appellate Court resulting in miscarriage of justice and sought for allowing the appeal. -6-
NC: 2024:KHC:30180 MSA No. 8 of 2018
9. Per contra Sri R.S.Ravi, learned Senior Advocate appearing for the contesting respondent-plaintiff, supports the impugned order. However he submits that there is no objection on behalf of the plaintiff if the additional evidence and additional issue, if any, is framed by the First Appellate Court itself and proceed to dispose of the appeal on merits by exercising the power under Order XLI Rule 25 of CPC, 1908 and prays for passing appropriate orders.
10. Having heard the parties, this court perused the material placed on record meticulously. Admittedly the suit of the plaintiff came to be dismissed by the Trial Court. Before the First Appellate Court the additional document in the form of additional evidence placed on record is an endorsement issued by the jurisdictional police on the police complaint said to have been given by the plaintiff to the effect that the offence alleged in the complaint is a non-cognizable offence. Therefore an -7- NC: 2024:KHC:30180 MSA No. 8 of 2018 endorsement came to be issued which is sought to be placed on record.
11. Admittedly what is the effect of such a document on the merits of the matter is to be decided by considering the probative value by the concerned court. Only for said purpose remitting the matter to the Trial Court would result in injustice.
12. Further, if an additional issue is necessary for resolution of dispute having regard to the rival contentions of the parties, the First Appellate Court itself can frame additional issue and permit the parties to place additional evidence, if need be on the additional issue and then record a finding and pass an order on merits of the appeal. Only for the said purpose, remitting the matter to the Trial Court by the First Appellate Court therefore needs interference by this court by exercising the powers vested in this court under Order XLIII CPC.
13. Hence the following:
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NC: 2024:KHC:30180 MSA No. 8 of 2018 ORDER
(i) The appeal is allowed in part.
(ii) While maintaining the finding of the First Appellate Court with regard to the taking of additional evidence on record and additional issue, if any, to be framed, the order passed by the First Appellate Court directing the matter to be remitted to the Trial Court for fresh disposal in accordance with law is hereby set aside.
(iii) Instead, the learned Judge of the First Appellate Court can itself can frame additional issue and based on the additional evidence on record afford suitable opportunity for the parties to lead additional evidence, if any, and dispose of the appeal on merits in accordance with law.-9-
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(iv) The parties shall appear before the First Appellate Court without further notice on 24.08.2024.
(v) Thereafter, the learned Judge of First Appellate Court shall dispose of the appeal on merits on or before 31.12.2024.
(vi) It is needless to emphasize that the parties shall co-operate for the same. No orders as to costs.
Sd/-
(V SRISHANANDA) JUDGE SNB List No.: 1 Sl No.: 39