Smt Nagahanumakka Since Dead By ... vs Late Veeranna S/O Late ...
2022 Latest Caselaw 10021 Kant

                             1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 30TH DAY OF JUNE, 2022

                          BEFORE

          THE HON'BLE MS. JUSTICE JYOTI MULIMANI

       MISCELLANEOUS SECOND APPEAL NO.76 OF 2021

BETWEEN

1.    SMT NAGAHANUMAKKA
      SINCE DEAD BY HER LRS SRI NAGARAJU
      S/O BOMMAIAH,
      AGED ABOUT 65 YEARS,
      R/O GARUDAGALLU VILLAGE,
      SASALU HOBLI,
      DODDABALLAPURA TALUK,
      BANGALORE-561204

2.    SMT NAGAMMA
      W/O NAGARAJU,
      AGED ABOUT 60 YEARS,
      R/O SEETHAKAL,
      KADENAHALLI VILAGE,
      URDGERE HOBLI,
      TUMKUR DISTRICT-572140               ...APPELLANTS

(BY SRI.KESHAV.R.AGNIHOTRI, ADVOCATE)

AND

1.    LATE VEERANNA
      S/O LATE VEERAKYATHAIAH
      SINCE DEADBY HIS LRS
      SMT NAGARATHNAMMA,
      D/O LATE VEERANNA,
      AGED ABOUT 58 YEARS,
                             2




     R/O GARUDAGALLU VILLAGE,
     SASALU HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT-561203

2.   SMT. DODDANAGAMMA
     D/O LATE VEERANNA,
     AGED ABOUT 56 YEARS,
     R/O GARUDAGALLU VILLAGE,
     SASALU HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT-561203

3.   SRI NAGARAJU
     S/O LATE VEERANNA,
     AGED ABOUT 54 YEARS,
     R/O GARUDAGALLU VILLAGE,
     SASALU HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT-561203

4.   SMT VEERANAGAMMA
     D/O LATE VEERANNA,
     AGED ABOUT 50 YEARS,
     R/O GARUDAGALLU VILLAGE,
     SASALU HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT-561203

5.   SRI PADDUKUMAR
     S/O LATE VEERANNA,
     AGED ABOUT 48 YEARS,
     R/O GARUDAGALLU VILLAGE,
     SASALU HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT-561203
                                       ...RESPONDENTS
(BY SRI.S.A.KHADRI., ADVOCATE)
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    THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF THE
CODE OF CIVIL PROCEDURE, 1908..

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

                            ORDER

Sri.Keshav.R.Agnihotri, learned counsel for appellants

has appeared in person.

2. The parties are referred to as per their rankings

before the Trial Court.

3. The brief facts of the case are stated as under:

It is stated that originally the plaintiff filed the suit for

the relief of permanent injunction restraining the defendants

from disturbing his peaceful possession and enjoyment of the

suit schedule property bearing Sy.No.19/3 measuring to an

extent of 4.12 Acres, situated at Garudagallu Village, Sasalu

Hobli, Doddaballapura Taluk. It was contended that the

property was allotted to his father's share in a family partition

and after his death, he is in possession since 1989 and the

first defendant has no right and he is not in possession over

the disputed property. The defendants contested the suit and

denied the plaint averments. The Trial Court dismissed the

suit on 27.02.2009. Aggrieved by the judgment and decree,

an appeal was preferred in R.A.No.55/2009 before Fast Track

Court, Doddaballapura. In the appeal, an application was

moved for production of additional evidence under Order 41

Rule 27 of CPC which came to be allowed and the matter was

remanded to the Trial Court vide judgment and decree

dated:02.11.2012.

As matter stood thus, plaintiff got examined further and

got marked Ex.P6 & P7 and defendants also got examined one

more witness namely Bommalingaiah as DW3 and got marked

additional documents as Ex.D19 to D24. After remand, the

plaintiff also moved an application in I.A.No.X under Order VI

Rule 17 of CPC for amendment for which objections were filed.

The application came to be dismissed by an order

dated:12.07.2013. The order of remand was questioned

before this Court in MSA No.49/2013 and the same was

dismissed on 05.02.2014. Thereafter, upon fresh hearing, the

suit came to be dismissed once again vide judgment and

decree dated:22.07.2016. Aggrieved by the said dismissal of

the suit, an appeal came to be preferred in R.A.No.26/2016

renumbered as R.A.No.10033/2019. On appeal, the Appellate

Court vide judgment and decree dated:01.02.2020 remanded

the matter to the Trial Court reserving liberty to the plaintiff to

file fresh application for amendment under Order VI Rule 17 of

CPC to introduce relief of declaration. Hence, this appeal is

filed on various grounds as set out in the Memorandum of

Second Appeal.

3. Counsel for appellants has urged several

contentions.

4. Heard, the contentions urged on behalf of the

appellants.

The case really falls within a small compass. The suit was

simple, but as it went on appeal, it has widened out. The suit is

one for permanent injunction and the same came to be

dismissed. In the first round of litigation, the Appellate Court

remanded the case to the Trial Court and after remand, the

plaintiff moved an application under Order VI Rule 17 of CPC

seeking permission to amend the plaint. The application was

opposed by the defendant. The Trial Court rejected the

application vide order dated:12.07.2013. The order was not

challenged by the plaintiffs. The said dismissal order has attained

finality.

Suffice it to note that the defendants had preferred an

appeal challenging the order of remand before this Court in

M.S.A.No.49/2013. Even in the said appeal also, the plaintiffs did

not raise any contention with regard to the validity of the order

passed on I.A.No.X. Ultimately this Court dismissed the appeal

holding that the order of remand is justified. After the remand,

the Trial Court in extenso referred to the material on record and

dismissed the suit again. The plaintiffs preferred an appeal

before the Appellate Court. It is interesting to notice that the

Appellate Court while deciding the appeal, considered the case

and directed the plaintiff to file fresh application under Order VI

Rule 17 of CPC to seek the relief of declaration of title.

While addressing arguments, counsel for appellants

strenuously urged that the First Appellate Court has erred in

remanding the matter. Learned counsel strenuously urged that

the order of remand is contrary to the provisions of Civil

Procedure Code.

I have considered the contention made on behalf of

appellants. The controversy is with regard to remand. This is

second round of litigation. As already noted above, initially, the

suit came to be dismissed and on appeal it was remanded and

the order of remand was challenged before this Court and this

Court upheld the order of remand.

It is relevant to note that the plaintiff moved an application

seeking permission to amend the pliant. The Trial Court rejected

the application. It is not in dispute that the plaintiffs did not

challenge the said order and the same has attained finality. The

Appellate Court however, reserved liberty to the petitioner to file

fresh application for amendment to introduce the relief of

declaration.

I may venture to say that the Appellate Court has failed to

have regard to relevant considerations and disregarded relevant

matters. Further, the Appellate Court has dealt with the appeal

as if the order of dismissal of amendment application is before

the Court. The Appellate court has failed to consider the

important factors like amendment and limitation.

In my considered opinion, the order of remand is totally

against the canons of Civil Procedure Code. What is required to

be considered by the Appellate Court is whether the dismissal of

the suit is justified or not. On the contrary, the Appellate Court

set aside the entire judgment and decree of the Trial Court and

remitted the matter and also directed the plaintiffs to file an

application for amendment to introduce relief of Declaration.

As is well known that Order 41 Rule 23 of the Code of Civil

Procedure deals with remand in other cases i.e., where the Court

from whose decree an appeal is preferred has disposed of the

case otherwise than on a preliminary point, and the decree is

reversed in appeal and a re-trial is considered necessary, the

Appellate Court shall have the same power as it has under Rule

23.

Suffice it to note that in NADAKERAPPA (SINCE

DECEASED) BY LRS. AND OTHERS VS. PILLAMMA (SINCE

DECEASED) BY LRS. AND OTHERS reported in AIR 2022 SC

1609, the Apex Court has held that an order of remand cannot

be passed for the mere purpose of remanding a preceding to the

Trial Court or to the Tribunal. An endeavor has to be made by

the Appellate Court to dispose of the case on merits. It is also

held that where both the sides have led oral and documentary

evidence, the Appellate Court has to decide the appeal on merits

instead of remanding the case to the Trial Court or to the

Tribunal.

In the present case also, the Appellate Court has remanded

the matter without any justification. It is needless to say that the

power of remand should be exercised sparingly.

The substantial question of law is answered accordingly.

The facts and circumstances of the case do not illustrate

that the matter requires a remand. For the reasons stated above,

I have no hesitation to say that the order of remand is unjust

and illegal. Resultantly, the judgment and decree

dated:01.02.2020 passed by the Appellate Court in

R.A.No.10033/2019 (old No.26/2016) is set aside. Appellate

Court is directed to dispose off the matter on merits on the

available oral and documentary evidence on record.

Accordingly, the Miscellaneous Second Appeal is

allowed.

In the last resort, counsel or appellant submits that the

original suit is of the year 2001 and we are in 2022. Hence, a

direction may be issued to the Appellate court to dispose of

the appeal at the earliest.

I find considerable force in the said submission.

Therefore, this Court deem it appropriate to direct the

Appellate Court to dispose the appeal within six months. It is

needless to observe that the parties to the appeal shall

cooperate with the Court for the final disposal of the appeal.

Sd/-

JUDGE

GVP