Shwetha W/O. Kottursway Hiremath vs Ayyappa S/O. Pattadayya Hiremath
2022 Latest Caselaw 10282 Kant

                           -1-




                                  RSA No. 100391 of 2015


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 05TH DAY OF JULY, 2022

                         BEFORE
          THE HON'BLE MR JUSTICE E.S.INDIRESH
     REGULAR SECOND APPEAL NO.100391 OF 2015 (DEC)
BETWEEN:

1.    SHWETHA W/O. KOTTURSWAY HIREMATH
      MAIDEN NAME
      KUMARI SHWETHA D/O. AJJAYAIAHSWAMY
      KAMBALIMATH
      AGE: 25 YEARS,
      OCC: HOUSEHOLD WORK
      R/O. YELBURGA
      DIST:KOPPAL

                                            ...APPELLANT

(BY SRI C.S. SHETTAR, ADVOCATE)

AND:

1.    AYYAPPA S/O. PATTADAYYA HIREMATH
      AGE: 24 YEARS,
      OCC: STUDENT
      R/O. YELBURGA
      DIST:KOPPAL

                                           ...RESPONDENT

(BY SRI P.G. MOGALI, ADVOCATE)

     RSA FILED U/S.100 R/W ORDER XLII RULE 1 OF CPC
1908, AGAINST THE JUDGEMENT & DECREE DTD:23.02.2015
PASSED IN R.A.NO.53/2009 ON THE FILE OF THE DISTRICT
JUDGE, KOPPAL, DISMISSING THE APPEAL, AND CONFIRMING
THE JUDGMENT AND DECREE DTD:06.04.2009 PASSED IN
O.S.NO.78/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AT
                                   -2-




                                            RSA No. 100391 of 2015


YELBURGA, DECREEING THE SUIT FILED FOR DECLARATION
AND RECTIFICATION OF R.O.R.
     THIS APPEAL COMING ON FOR FINAL DISPOSAL, THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
                           JUDGMENT

This Regular Second Appeal is filed by the defendant,

challenging the judgment and decree dated 23rd February, 2015

in RA No.53 of 2009 on the file of the District Judge at Koppal,

confirming the judgment and decree dated 06th April, 2009 in

Original Suit No.78 of 2006 on the file of Civil Judge (Sr.Dn.) at

Yelburga, decreeing the suit of the plaintiff.

2. For the sake of convenience, the parties in this

appeal are referred to with their rank and status before the trial

Court.

3. It is the case of the plaintiff that, the plaintiff is the

owner in possession of the suit schedule property. It is further

averred that the defendant has interfered with the suit schedule

property and as such, the plaintiff has filed Original Suit No.78

of 2006 on the file of the trial Court, seeking relief of

declaration with consequential relief of injunction and

rectification of Record of Rights in respect of the subject land.

After service of notice, the defendant entered appearance and

RSA No. 100391 of 2015

filed detailed written statement denying the averments made in

the plaint. After filing of the written statement, the plaintiff has

filed rejoinder to the written statement, refuting the contents in

paragraph 8 of the written statement. On the basis of the

pleadings on record, the trial Court framed issues for its

consideration. The Trial Court, after considering the material

on record, by its Judgment and Decree dated 06th April, 2009

decreed the suit and being aggrieved by the same, the

defendant has filed Regular Appeal No.53 of 2009 on the file of

the First Appellate Court and the same was contested by the

plaintiff. The First Appellate Court, after re-appreciating the

material on record, by its judgment and decree dated 23rd

February, 2015, dismissed the appeal, consequently confirmed

the judgment and decree passed in Original Suit No.78 of 2006.

Being aggrieved by the same, the defendant has preferred this

Regular Second Appeal.

4. This Court, on the date of Admission, has

formulated the following substantial question of law:

"Whether the First Appellate Court is justified

in disposing of the appeal in the absence of

RSA No. 100391 of 2015

consideration of the application filed by the appellant

under Order XLI Rule 27 of the Code of Civil

Procedure?"

5. I have heard Sri C.S. Shettar, learned counsel

appearing for the appellant and Sri P.G. Mogali, learned counsel

appearing for the respondent.

6. Sri C.S. Shettar, learned counsel appearing for the

appellant contended that the defendant has filed application in

IA.II under Order XLI Rule 27 of Code of Civil Procedure before

the First Appellate Court and same was not considered by the

First Appellate Court and therefore, the learned Counsel argued

that non-consideration of the same is in violation of Order XLI

Rule 31 of Code of Civil Procedure.

7. Per contra, Shri P.G. Mogali, learned Counsel

appearing for the respondent contended that consideration of

IA.II does not arise, as both the courts below have concurrently

held on the facts of the case.

8. In the light of the submission made by the learned

Counsel appearing for the parties, this Court has summoned

RSA No. 100391 of 2015

the original records from the First Appellate Court. Perusal of

the record would indicate that IA.II is filed under Order XLI

Rule 27 of the Code of Civil Procedure before the First Appellate

Court, as per the Order sheet dated 12th August, 2010. Perusal

of the Application in IA.II would reveal that the said Application

is consisting of 13 documents filed by the defendant. In the

light of the same, I have carefully examined whether the First

Appellate Court has considered the same or not. On perusal of

the entire judgment and decree of the First Appellate Court,

there is no whisper or finding on IA.II filed by the defendant

under Order XLI Rule 27 of Code of Civil Procedure. In the light

of the law declared by the Hon'ble Apex Court in the case

SANTOSH HAZARI v. PURUSHOTHAM TIWARI reported in

(2001)3 SCC 179, it is the duty of the First Appellate Court to

re-appreciate the entire material on record in terms of the

scope and ambit of Order XLI Rule 31 of Code of Civil

Procedure. Following the law declared by the Hon'ble Apex

Court referred to above, I am of the view that, as the First

Appellate Court has not considered the IA.II filed by the

defendant therein, the present appeal requires to be allowed by

RSA No. 100391 of 2015

remanding the matter to the First Appellate Court for fresh

consideration. In the result, I pass the following:

ORDER

1. Appeal allowed;

2. Judgment and decree dated 23rd February, 2015

passed in Regular Appeal No.53 of 2019 on the

file of the District Judge, Koppal is set aside

remanding the matter to the First Appellate

Court to consider the appeal afresh along with

the application in IA.II filed by the

defendant/appellant under Order XLI Rule 27 of

Code of Civil Procedure, after affording

opportunity of hearing to the parties;

3. In order to avoid further delay in the matter,

parties are directed to appear before the

Appellate Court on 29th July, 2022 without

awaiting further notice from the First Appellate

Court;

RSA No. 100391 of 2015

4. It is made clear that this Court has not

expressed any opinion on the merits of the case

and the First Appellate Court is directed to

dispose of the appeal expeditiously

Sd/-

JUDGE

LN