Abdul Wajeed vs R S Netravathi
2023 Latest Caselaw 5745 Kant

                                               -1-
                                                          NC: 2023:KHC:29383
                                                          MSA No. 30 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 18TH DAY OF AUGUST, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS SECOND APPEAL NO. 30 OF 2021 (RO)
                   BETWEEN:

                   ABDUL WAJEED
                   S/O ABDUL BASHEER
                   AGED ABOUT 58 YEARS
                   R/A NEAR KENCHARAYA TEMPLE
                   RAMANAHALLI, CHIKKAMAGALURU
                                                                ...APPELLANT
                   (BY SRI. JANARDHAN REDDY., ADVOCATE)

                   AND:

                   1.    R S NETRAVATHI
                         D/O LATE SAGANAIAH
                         AGED ABOUT 38 YEARS

                   2.    R S BASAVARAJ
Digitally signed
by                       S/O LATE SAGANAIAH
DHANALAKSHMI             AGED ABOUT 37 YEARS
MURTHY
Location: High     3.    R S SHANTHAKUMAR
Court of                 S/O LATE SAGANAIAH
Karnataka
                         AGED ABOUT 36 YEARS

                   4.    R S MANJULA
                         D/O LATE SAGANAIAH
                         AGED ABOUT 36 YEARS

                         ALL ARE R/AT HOOVADIGARA BEEDI
                         RAMANAHALLI, CHIKKAMAGALUR-577003.
                            -2-
                                       NC: 2023:KHC:29383
                                       MSA No. 30 of 2021




5.   SYED SADIQ
     S/O ABDUL RAZAK
     AGED ABOUT 58 YEARS

6.   SMT LUBNA
     D/O LATE SYED SADIQ
     AGED ABOUT 32 YEARS

     R5 & R6 ARE R/A ANGANAVADI ROAD
     HALENAHALLI, JYOTHINAGARA POST
     CHIKKAMAGALUR CITY.
                                          ...RESPONDENTS
(BY SRI. G. S. BHAT.,ADVOCATE, FOR R1 TO R4:
NOTICE TO R5 & R6 ARE SERVED & UNREPRESENTED)


     THIS MSA IS FILED UNDER SECTION 43 RULE 1(u) THE
AGAINST THE JUDGMENT AND DECREE DATED: 23.12.2020
PASSED IN RA NO.29/2018 ON THE FILE OF THE IST
ADDITIONAL SENIOR CIVIL JUDGE, AT CHIKKAMAGALURU
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 29.10.2003 PASSED IN OS NO.139/2003
ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC,
CHIKKAMANGALUR      PARTLY DECREEING THE SUIT FOR
PERMANENT INJUNCTION.

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

1. This appeal under Order 43 Rule 1(u) of CPC is filed

by the appellant challenging the judgment and decree

dated 23.12.2020 passed by the 1st Additional Senior Civil

Judge, Chikkamagaluru in R.A.No.29/2018, whereby the

NC: 2023:KHC:29383 MSA No. 30 of 2021

First Appellate Court has allowed the appeal and remanded

the matter to the Trial Court for fresh consideration.

2. For the sake of convenience, the parties are referred

to as per their ranking before the Trial Court in

O.S.No.139/2003.

3. The plaintiffs filed the suit before the Trial Court for

bare injunction. On service of suit summons, defendants

appeared through counsel and filed written statement.

During the pendency of the suit, the parties have filed

compromise petition. Since defendant Nos.3 to 6 were

minors, they have been represented by their father,

defendant No.2. On the basis of the compromise petition,

the suit came to be decreed by judgment and decree

dated 29.10.2003. Being aggrieved by the same, the

defendant Nos.3 to 6 have filed R.A.No.29/2018 before the

First Appellate Court. After hearing the parties, the First

Appellate Court by impugned judgment and decree dated

23.12.2020 allowed the appeal and remanded the matter

to the Trial Court to give opportunity to both the parties to

NC: 2023:KHC:29383 MSA No. 30 of 2021

lead evidence and to consider the matter afresh. Being

aggrieved by the same, the plaintiff No.1 is before this

Court.

4. The specific contention of the defendant Nos.3 to 6

before the First Appellate Court is that they were majors

at the time of filing the suit i.e., O.S.No.139/2003 and

they were treated as minors and on behalf of them, their

father, defendant No.2 had signed the compromise

petition. The First Appellate Court after considering the

materials available on record has come to the conclusion

that some of the defendants were minors, but they were

shown as majors and some of the defendants were majors

and they were shown as minors, at the time of entering

the compromise petition.

5. The First Appellate Court by impugned judgment

and decree dated 23.12.2020 has rightly allowed the

appeal and remanded the matter to the Trial Court to

reconsider the matter afresh. I do not find any error or

NC: 2023:KHC:29383 MSA No. 30 of 2021

infirmity in the judgment and decree passed by the First

Appellate Court. Hence, the same is confirmed.

6. In the result, the appeal is dismissed. The Trial

Court is directed to reconsider the matter afresh and

dispose of the suit in accordance with law, without being

influenced by the judgment and decree passed by the First

Appellate Court.

In view of dismissal of the appeal, all pending

I.As., if any, do not survive for consideration and hence,

they are dismissed accordingly.

Sd/-

JUDGE

DM