Smt. Sunita W/O Late Raju More vs Shri Sanjay S/O Siddappa More
2022 Latest Caselaw 11982 Kant

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                                  MSA No. 100088 of 2022


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

    DATED THIS THE 20TH DAY OF SEPTEMBER, 2022

                        BEFORE
       THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS SECOND APPEAL NO. 100088 OF 2022
BETWEEN:

SMT.SUNITA W/O LATE RAJU MORE,
AGE: 58 YEARS,
OCC: HOUSEHOLD,
R/O. H.NO. 1176/1C,
1ST FLOOR, 1ST BLOCK,
KONAWAL GALLI,
BELAGAVI-590001.

                                              ...APPELLANT
(BY SRI. DINESH M.KULKARNI, ADVOCATE)
AND:
SHRI SANJAY S/O SIDDAPPA MORE,
AGE: 58 YEARS,
OCC: BUSINESS,
R/O. H.NO. 1176/1C,
1ST FLOOR, 1ST BLOCK,
KONAWAL GALLI,
BELAGAVI-590001.

                                             ...RESPONDENT
(BY SRI. VITTHAL S.TELI, ADVOCATE FOR C/R)
      THIS M.S.A. FILED UNDER SECTION XLI RULE 1 (u) OF
C.P.C., PRAYING TO, SET ASIDE THE JUDGMENT DATED
24.08.2022 PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI IN R.A.
NO.21/2016 IN REMITTING THE MATTER TO THE V
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, BELAGAVI IN O.S. NO.190/2010 .
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                                      MSA No. 100088 of 2022


    THE APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED FOLLOWING:
                        JUDGMENT

Challenging order dated 24.08.2022 passed by II

Additional Senior Civil Judge and C.J.M., Belagavi in

R.A.no.21/2016, this appeal is filed.

2. Brief facts as are necessary for disposal of this

appeal are that, O.S.no.190/2010 was filed by

respondent-plaintiff seeking for relief of possession of suit

property from appellant-defendant. Trial Court dismissed

suit by judgment and decree dated 02.01.2016.

3. Aggrieved thereby, plaintiff filed

R.A.no.21/2016, which came to be allowed by judgment

and decree dated 03.04.2018. Against same, defendant

filed R.S.A.no.100335/2018 before this Court.

4. This Court by its judgment dated 23.08.2021,

allowed appeal and remitted matter back to first appellate

Court with a direction to hear and dispose of I.A.nos.1 and

2 filed under Order XLI Rule 27 C.P.C.

MSA No. 100088 of 2022

5. Upon remand, first appellate Court considered

application along with main matter, allowed application

under impugned order and directed trial Court to record

evidence thereon and return same. However while passing

said order, first appellate Court termed order as a

judgment and instead of passing in order sheet of appeal,

order is appended to full cause title giving an impression

that it is final judgment.

6. In view of above circumstances, Sri Dinesh

M.Kulkarni, learned counsel for appellant submits that this

Miscellaneous Second Appeal is filed which requires to be

allowed as in the guise of directing recording evidence,

main matter could not be remanded. He would further

submits that even while passing said order applications

filed by appellant were also rejected and appellant would

be aggrieved by said orders also.

7. On other hand, Sri Vitthal S.Teli, learned

counsel for caveator-respondent submits that there is no

remand of entire matter to trial Court and there are clear

MSA No. 100088 of 2022

observations of first appellate Court that matter is

remitted to trial Court to record evidence on I.A.nos.1 and

2 and return evidence recorded to enable it to decide

matter on merits. And against such an order Miscellaneous

Second Appeal would not be maintainable.

8. Having heard learned counsel and on perusing

impugned order, it is seen that though paraphernalia of

impugned order would given an impression of it being final

judgment, but on perusal of operative portion of order,

intention of first appellate Court is emphatic.

9. Under impugned order, trial Court is directed to

record evidence on I.A.nos.1 and 2 after affording

opportunity to parties and thereafter return evidence

recorded for finding on merits.

10. Merely due to order being titled as judgment

would not change nature of order. Hence, appeal is

misconstrued.

MSA No. 100088 of 2022

11. In view of above, I pass following:

ORDER

Appeal is dismissed. However with clarification that in case appellant is aggrieved by orders passed on other applications, she is at liberty to question same in appropriate proceedings, if permissible in law and this order is confined only to challenge to orders passed on I.A.nos.1 and 2 in R.A.no.21/2016 by II Addl.Senior Civil Judge and C.J.M., Belagavi on 24.08.2022.

No order as to costs.

SD/-

JUDGE

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