Vijayalakshmi W/O Sheesha Bhat vs G.Nagamani D/O G Sarojamma
2022 Latest Caselaw 2221 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 11TH DAY OF FEBRUARY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              M.S.A.NO.100148/2019 (RO)

BETWEEN

VIJAYALAKSHMI
W/O SHESHA BHAT,
AGE: 58 YEARS,
OCC: HOUSEWIFE,
R/O NEAR TALUK PANCHAYATH OFFICE,
HOSAPETE ROAD,
1ST WARD, KUDLIGI TOWN,
KUDLIGI TALUK,
DIST: BALLARY-583211.
                                          ... APPELLANT
(BY SRI LAXMAN T.MANTAGANI, ADV.)

AND

1.    G.NAGAMANI
      D/O G.SAROJAMMA
      AGE: 60 YEARS,
      OCC: HOUSEWIFE,
      R/O NEAR TALUK PANCHAYATH OFFICE,
      HOSAPETE ROAD,
      8TH WARD KUDLIGI,
      BALLARI, DISTRICT-583211.

2.    SHASHANKA
      S/O G. NAGAMANI
      AGE: 36 YEARS,
      OCC: STUDENT,
      R/O NEAR TALUK PANCHAYATH OFFICE,
      HOSAPETE ROAD,
                               2




      8TH WARD, KUDLIGI,
      BALLARI, DISTRICT - 583211.

3.    G. SHAMANTH
      S/O G.NAGAMANI,
      AGE: 33 YEARS, OCC: STUDENT,
      R/O NEAR TALUK PANCHAYATH OFFICE,
      HOSAPETE ROAD,
      8TH WARD, KUDLIGI,
      BALLARI, DISTRICT-583211.

4.    SREEDHARA MURTHY
      S/O SRIRAMULU
      AGE: 58 YEARS,
      OCC: MANAGER,
      THUNGA BHADRA GRAMEENA BANK,
      GUDEKOTE POST,
      KUDLIGI TALUK,
      BALLARI DISTRICT-583 211.
                                           ... RESPONDENTS

(BY SRI HANUMANTHREDDY SAHUKAR, ADV. FOR R.1 TO R3.)
(NOTICE TO RESPONDENT4 IS SERVED)

      THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
SECTION XLIII RULE 1 (U) R/W SECTION 14 OF THE CODE OF
CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO SET ASIDE
THE JUDGEMENT AND DECREE DATED 17.10.2019 PASSED IN
R.A.NO.5016/2016 BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI (SITTING AT HOSAPETE), PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND
DECREE DATED 22.01.2016 PASSED IN O.S.NO.23/2003, ON
THE FILE OF THE SENIOR CIVIL JUDGE, KUDLIGI, DISMISSING
THE   SUIT    FILED   FOR   DECLARATION   AND   PERMANENT
INJUNCTION.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                   3




                        : JUDGMENT :

The captioned Miscellaneous Second Appeal is

filed by defendant questioning remand the order

passed by the First Appellant Court by its judgment

and decree dated 17.10.2019 passed in

RSA.No.5016/2016.

2. The facts leading to the above said case

are as under:

The respondents herein filed a suit for

declaration and for consequential relief of injunction.

The respondents-plaintiffs claim they are the owners

of suit schedule property and that they have

purchased the same from T.Bhagirathi

Marulasiddanagouda for sale consideration of

Rs.3,00,000/- under a registered sale deed dated

28.06.1999.

3. The respondents-plaintiffs claim that they

are in exclusive possession and enjoyment over the

suit schedule property and further claim that from the

date of purchase of suit schedule property, they are in

possession and enjoyment. The respondents-plaintiffs

also claim that there is a staircase on the eastern side

and the said staircase was used by respondents-

plaintiffs' vendor. The respondents-plaintiffs further

claim that after purchase, they are also using the

staircase for business purpose. The respondents-

plaintiffs demolished the entire building except ground

floor front portion and reconstructed the ground floor

portion after obtaining necessary licence from the

concerned authorities. The respondents-plaintiffs

further contended that the old exiting building on the

front side was retained and the same is referred as

'ABCDE' portion in hand sketch and on the southern

side, the respondents-plaintiffs put up a new

construction which was referred 'CDGH' in the rough

sketch. The respondents-plaintiffs contention is that

the portion shown as 'DEFG' is open space and the

same is retained by respondents-plaintiffs with a view

to construct staircase and also to make use of open

space for laying drainage and for other purposes.

4. The grievance of the respondents-plaintiffs

was that appellant-defendant who is the adjoining

owner and who is not in good terms has commenced

with construction without obtaining any licence from

the authorities. The respondents-plaintiffs claim that

the present appellant-defendant taking undue

advantage of open space and with a view to grab the

said property has constructed 'KL' wall on the western

side and also attempted to grab respondents-plaintiffs'

'DEFG' open space and therefore filed a suit for

declaration and injunction.

      5.   On   receipt     of    summons     the    present

appellant-defendant       contested   the     proceedings,

stoutly denied the entire averments made in the plaint

and also seriously disputed the sketch furnished along

with the plaint. The appellant-defendant contended

that she has commenced with construction strictly in

terms of building byelaws and construction is also

within her property. Therefore the appellant-defendant

contended that suppressing all these material facts,

the present suit is filed. The appellant-defendant also

contended that the portion referred as 'EDFG' in the

rough sketch is factually incorrect and the story

narrated in the plaint depicting the factual matrix in

sketch is a concocted story.

6. The Trial Court having assessed the oral

and documentary evidence dismissed the suit. The

respondents-plaintiffs feeling aggrieved by the

dismissal of the suit, preferred appeal before the First

Appellate Court.

7. The First Appellate Court having formulated

points for consideration has come to conclusion that

the proper issues are not framed by the Trial Court

and has set aside the judgment and decree of the Trial

Court and remitted the matter for de novo trial with a

direction to recast the issues as reflected in page

No.22 of the judgment.

8. Heard learned counsel appearing for the

appellant-defendant and respondents-plaintiffs and

perused the remand order under challenge.

9. Respondents-plaintiffs initially filed a suit

for declaration and injunction. Pending suit,

respondents-plaintiffs alleged that the appellant-

defendant has illegally constructed by encroaching

over their property and therefore sought for relief of

possession also apart from seeking relief of mandatory

injunction. The view taken by the First Appellate Court

is that, when respondents-plaintiffs have sought for

possession, the Trial Court ought to have formulated

an issue in that regard and therefore has proceeded to

set aside the judgment and decree of the Trial Court

and consequently has ordered for fresh trial thereby

permitting the parties to lead fresh evidence.

10. This Court would find that pending suit,

respondents-plaintiffs sought for relief of possession.

Though the trial Court has framed additional issues on

24.10.2011 and additional Issue No.1 relates to relief

of mandatory injunction, but however, a specific issue

as to whether the respondents-plaintiffs are entitled to

seek possession is not framed by the Trial Court. Now

what this Court has to examine is, even if specific

issue in regard to possession is not framed, whether

that could have been sole ground to set aside the

judgment and decree of the Trial Court and ordered

for fresh trial.

11. Respondents-plaintiffs have led in evidence

to substantiate their claim. Respondents-plaintiffs are

asserting right, title and claiming ownership.

Therefore sought for relief of mandatory injunction

alleging that in vacant space, the appellant-defendant

by encroaching has put up construction. If the

allegations are that construction is made by

encroaching over vacant open space, then the First

Appellate Court was also required to examine as to

whether the additional issue framed on 24.10.2011 in

regard to mandatory injunction would also cover the

relief of injunction. Because if relief of mandatory

injunction is granted and nature of the property is

restored by removing the structure, question of

physically handing over vacant open space would not

arise.

12. The First Appellate Court was also required

to examine as to whether respondents-plaintiffs have

led in evidence relating to relief of possession also. If

there is already evidence on record, nothing

prevented the First Appellate Court to frame additional

issues and thereafter proceed to decide the appeal on

merits. Merely because there is some error committed

by the Trial Court in not formulating appropriate

issues, that in itself cannot be a ground to virtually set

aside an exhaustive judgment rendered by the Trial

Court on all the issues. Recourse to Order XLI Rule

23A of the CPC has to be adopted only if the First

Appellate Court comes to a conclusion that it cannot

proceed and decide the lis between the parties by

having recourse to Order XLI Rule 24 or Rule 25 of

CPC.

13. The remand order does not indicate

whether the First Appellate Court has exercised

jurisdiction under Order XLI Rule 23 or Rule 23A of

CPC. The First Appellate Court judgment does not

indicate that it has followed the procedure

contemplated under Order XLI Rules 30 and 31 of

CPC. What emerges from the records is that the order

of remand passed by the First Appellate Court is

without considering the merits and the findings

recorded by the Trial Court. The First Appellate Court

being a final fact finding authority is not only required

to consider the merits of findings recorded by the Trial

Court, but has to further examine whether the

findings of the Trial Court are liable to be reversed or

set aside. The First Appellate Court has to record a

categorical finding that the re-trial is inevitable and

effective adjudication of controversy between the

parties cannot be achieved without having recourse to

remand.

14. It is a trite law that the exercise of remand

has to be made only in exceptional cases. On prima

facie examination of the Trial Court judgment, this

Court would find that the evidence adduced by the

parties is sufficient and therefore the First Appellate

Court ought to have proceeded to decide the case on

merits. Even if the First Appellate Court was of the

view that some of the issues need to be re-settled,

what was required to be examined by Court was even

if some issues are to be reframed or fresh issues are

to be framed, it was incumbent on the part of the First

Appellate Court to find out whether material evidence

is already adduced by the parties. Respondents-

plaintiffs are seeking relief of possession and therefore

the respondents-plaintiffs having understood their

case may have in all probability led in evidence to

make out a case that they are entitle for recovery of

possession. If document relating to title and the fact

that they are entitled for possession is already placed

on record and if fresh issue to be framed does not

require any additional evidence, the Appellate Court

ought to have proceeded to decide the case on merits

15. The First Appellate Court even otherwise

ought to have adopted the course provided under Rule

25 of Order XLI of CPC. If the First Appellate Court

was of the view that the controversy between the

parties would warrant taking of additional evidence on

record, then it was well within the jurisdiction of First

Appellate Court to direct the Trial Court to record

evidence and return the evidence to First Appellate

Court for reappraisal under Order XLI Rules 1 and 2 of

CPC.

16. Therefore, it is in this background, this

Court would find that the remittal of whole case

passed by the First Appellate Court is palpably

erroneous and also contrary to the judgment rendered

by this Court in the case of Shanthaveerappa Vs.

K.N.Janardhanachari1. This Court while dealing with

the identical case has come to conclusion that it is well

within the jurisdiction of the First Appellate Court to

amend the pleadings, frame issues, re-settle issues,

delete issues, receive evidence by way of additional

evidence, record evidence, summon witnesses, order

for commission and pass interim orders. The Appellate

Court is also vested with power to take note of

subsequent events also.

17. Section 107(2) of CPC does invest the

Appellate Court with some powers that are conferred

on Court on original jurisdiction. It is a trite law that it

is a bounden duty of the Appellate Court to see

whether the evidence taken as a whole can reasonably

ILR 2007 KAR 1127

justify the conclusion which the Trial Court arrived at

or whether there is an element of improbability arising

through a number of circumstances which in the

opinion of the Court outweighs such finding.

18. Therefore, this Court is of the view that the

remand order passed by the First Appellate Court is

also contrary to the dictum laid down by this Court in

the judgment cited supra.

19. In view of discussions made in the

preceding paragraphs, I am of the view that the

remand order is not at all sustainable. Hence, I

proceed to pass the following:

: ORDER :

           The     miscellaneous             first   appeal   is
     hereby allowed and remanded.

           The     judgment            and     decree    dated

17.10.2019 passed in R.A.No.5016/2016 by the III Additional District & Sessions Judge, Ballari (Sitting at Hosatepe)

remanding the matter for de novo trial is hereby set aside.

The First Appellate Court is directed to decide the case on merits by following the principles laid down by this Court in Shanthaveerappa's case supra.

Since the parties are represented by their respective counsel, they are directed to appear before the First Appellate Court on 14.03.2022 without expecting fresh notice from the Court.

SD/-

JUDGE EM