Karnataka High Court
Sri H S Basavarajappa vs Sri G M Mallikarjuna on 9 November, 2022
Bench: M G Uma
-1-
RSA No. 167 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 167 OF 2018 (DEC/INJ)
BETWEEN:
1. SRI H S BASAVARAJAPPA
S/O LATE SIDDAPPA,
AGED ABOUT 69 YEARS
R/O HANUMANAHALLI VILLAGE,
MAYAKONDA HOBLI,
DAVANAGERE TQ.
2. SRI.H.G.MALLIKARJUNAPPA
S/O H.G.BASAVARAJAPPA,
AGED ABOUT 39 YEARS
Digitally
signed by R/O HANUMANAHALLI VILLAGE,
HARSHITHA B MAYAKONDA HOBLI, DAVANAGERE TQ.
Location: High 3. SRI.H.G.BASAVANAGOWDA
Court Of
S/O H.S.BASAVARAJAPPA,
Karnataka
AGED ABOUT 37 YEARS
R/O HANUMANAHALLI VILLAGE,
MAYAKONDA HOBLI, DAVANAGERE TQ.
...APPELLANTS
(BY SRI. HAREESH BHANDARY T., ADVOCATE FOR
APPELLANT NOS.2 & 3 V/O DTD 23.02.2021 & FOR APPELLANT
NO.1)
-2-
RSA No. 167 of 2018
AND:
SRI G M MALLIKARJUNA
S/O LATE H.G.MANJUNATHA,
AGED ABOUT 35 YEARS
R/O HANUMANAHALLI VILLAGE, MAYAKONDA HOBLI,
DAVANAGERE TQ.
...RESPONDENT
(BY SRI. A.ANANDA SHETTY.,ADVOCATE)
RSA FILED UNDER SEC.100 OF CPC.,AGAINST THE
JUDGMENT AND DECREE DATED:04.09.2017 PASSED IN
RA NO.38/2015 ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE.,DAVANAGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED:
08.04.2015 PASSED IN OS NO.480/2009 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE.,DAVANAGERE.
THIS APPEAL, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
-3-
RSA No. 167 of 2018
JUDGMENT
Heard learned counsel for the appellants and respondent.
2. Learned counsel for the appellants submits that the
defendant has preferred this appeal aggrieved by the
concurrent findings of fact by trial court as well as First
Appellate Court, decreeing the suit of the plaintiff for
declaration and injunction.
3. The defendant who had preferred RA No.38/2015,
have filed I.A.No.2, 3 and 5 before the first Appellate Court
under Order 41 Rule 27 of CPC producing additional document.
He had also filed I.A.No.4 under order 26 Rule 9 of CPC praying
for appointment of a Commissioner. None of these applications
were considered by the First Appellate Court and therefore, the
matter requires remand to the First Appellate Court to consider
those applications and to pass appropriate orders.
4. Learned counsel for the respondent fairly conceded
that since those applications are not considered by First
Appellate Court, appropriate order is required to be passed.
However, he submits that those applications are to be
RSA No. 167 of 2018
considered in the light of Ex.D7-the release deed between the
family members.
5. Perused the trial Court records and first Appellate
Court records.
6. Learned counsel for the appellants is right in stating
that he had filed I.A.Nos.2, 3 and 5 for producing additional
documents and I.A.No.4 for appointment of Commissioner.
Order sheet of the First Appellate Court discloses that those
applications were not considered and no separate orders are
passed. However, impugned judgment came to be passed
without considering those pending applications.
7. Hence, I am of the opinion that the impugned
judgment and decree passed by First Appellate Court requires
to be set aside. The matter is liable to be remanded back to the
First Appellate Court for fresh consideration. Hence, I proceed
to pass the following;
RSA No. 167 of 2018
ORDER
Appeal is allowed.
The impugned judgment and decree dated 04.09.2017
passed in RA No.38/2015 is set aside.
Appeal is remanded back to the First Appellate Court to
consider pending applications, in view of the discussion held
above and to pass appropriate orders both on applications and
in the appeal.
Parties are directed to appear before First Appellate Court
on 07.12.2022 without waiting for fresh summons.
The First Appellate Court is directed to dispose of the
applications and the appeal within three months.
Office is directed to sent back the trial Court records
forthwith.
Sd/-
JUDGE
BH
