Karnataka High Court
Shri. Jagannath S/O. Ramanna ... vs Mallikarjun S/O. Jagannath ... on 4 August, 2023
Bench: Sachin Shankar Byssmj
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NC: 2023:KHC-D:8312
WP No. 102423 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 102423 OF 2021 (GM-CPC)
BETWEEN:
SHRI JAGANNATH
S/O. RAMANNA HUKKERI,
AGE: ABOUT 77 YEARS,
OCC: AGRICULTURE,
R/O: DEVARGUDIHAL VILLAGE,
POST: RAYANAL,
TQ: HUBBALLI-581124.
...PETITIONER
(BY SRI S.S. NIRANJAN, ADVOCATE)
AND:
1. MALLIKARJUN
S/O. JAGANNATH HUKKERI,
AGE: ABOUT 53 YEARS,
OCC: AGRICULTURE AND BUSINESS,
Digitally signed
by
R/O: GHODKE ONI, HIREPETH,
MOHANKUMAR
MOHANKUMAR
B SHELAR
Location:
OLD HUBLI, HUBBALLI-580024.
B SHELAR
DHARWAD
Date:
2023.08.10
13:26:21 -0700
2. CHANDRAMOHAN
S/O. JAGANNATH HUKKERI,
AGE: ABOUT 48 YEARS,
OCC: BUSINESS,
R/O: GHODKE ONI, HIREPETH,
OLD HUBLI, HUBBALLI-580024.
3. PRABHAKAR
S/O. JAGANNATH HUKKERI,
AGE: ABOUT 46 YEARS,
OCC: SERVICE IN KEB,
R/O: H.NO.139, HEGGERI,
OLD HUBLI, HUBBALLI-580024.
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WP No. 102423 of 2021
4. SMT. ANASUYA URF. ANURADHA N.T.,
W/O. NIRANJAN BABU TALEGAVI,
AGE: ABOUT 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NO.568, 16TH CROSS,
K.T.J. NAGAR,
VIDYARTHI BHAVAN,
DAVANGERE-577002.
...RESPONDENTS
(BY SRI B.G. HIREMATH, ADVOCATE FOR R1;
NOTICE TO R2 TO R4 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUED A
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR ORDER OR DIRECTION QUASHING THE
ORDER DATED 25.03.2021 DISMISSING I.A.NO.2 IN R.A.NO.278
OF 2017 PASSED BY THE LEARNED I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI (ANNEXURE-
G); ISSUE A WRIT IN NATURE OF MANDAMUS OR ANY OTHER
APPROPRIATE WRIT OR ORDER OR DIRECTION DIRECTING THE
APPELLATE COURT TO PERMIT THE PETITIONER HEREIN TO
AMEND THE PLAINT AS PROPOSED FOR IN IA NO.2.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:8312
WP No. 102423 of 2021
ORDER
Captioned petition is filed by the plaintiff feeling
aggrieved by the order passed by the Appellate Court on
I.A.No.2 filed under Order VI Rule 17 of CPC.
2. The present petitioner feeling aggrieved by the
judgment and decree passed in O.S.No.338/2016 has
preferred an appeal in R.A.No.278/2017. Pending appeal,
the petitioner/plaintiff sought for amendment of the plaint.
The learned Judge has decided the application filed under
Order VI Rule 17 of CPC pending consideration of the
regular appeal.
3. The order under challenge warrants interference
as the procedure adopted by the Appellate Court is found
to be improper. It is a trite law that the regular appeal is a
statutory appeal and the appellate Court has to
independently asses the entire material on record. The
Appellate Court hearing the appeal under Section 96 has
to arrive at its own conclusion about controversy. When
interlocutory applications are filed in a regular appeal, the
NC: 2023:KHC-D:8312
WP No. 102423 of 2021
Appellate Court should not have ventured in deciding
these applications independently. It is only when the
matter is taken up for final hearing, the Appellate Court
will be better placed to examine whether the prayer
sought in the interlocutory applications can be entertained
or not. If the Appellate Court has not referred to the entire
material on record, the prayer sought in the interlocutory
applications ought not to have been rejected. The
applications ought to have been heard along with main
matter. The disposal of applications without adverting to
the pleadings, oral and documentary evidence, often leads
to erroneous conclusions on interlocutory applications.
Therefore, this Court has consistently held that all
interlocutory applications, which require further
adjudication has to be dealt with along with main appeal.
Such recourse is not adopted by the Appellate Court.
Therefore, the order under challenge is not sustainable.
For the reasons stated supra, I proceed to pass the
following:
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WP No. 102423 of 2021
ORDER
i. The writ petition stands allowed.
ii. The impugned order passed on I.A.No.2 at
Annexure-G is hereby set aside.
iii. The Appellate Court is directed to consider
the relief sought in I.A.No.2 at the time of
final hearing.
iv. In view of disposal of the petition, pending
interlocutory applications, if any, do not
survive for consideration and are disposed
of accordingly.
Sd/-
JUDGE
YAN
