Karnataka High Court

Shri Prakash vs Poojya Dr.Sharanabasappa Appa on 13 January, 2023

Bench: C.M. Poonacha

                          1



         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 13th DAY OF JANUARY, 2023

                       BEFORE

       THE HON'BLE MR.JUSTICE C.M.POONACHA

               RSA No.200063/2018

BETWEEN:

SRI PRAKASH
SON OF LAXMAN RAO BENAKANALLI
AGED ABOUT 57 YEARS,
RESIDING AT CHOUDESHWARI COLONY
BRAHMAPURA
GULBARGA - 585102.
                                           ... APPELLANT
(BY SRI VISHWAKARMARAJ NAYAK, ADVOCATE)

AND:

POOJYA DR. SHARANABASAPPA APPA
SON OF DODDAPPA APPA
AGED ABOUT 83 YEARS,
OCC: PEETADHIPATHI
SHRI SHARANABASAVESWARA SAMSTHAN
GULBARGA - 585102.
                                          ... RESPONDENT
(BY SRI D.P. AMBEKAR, ADVOCATE)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 08.12.2017 PASSED IN R.A. NO.76/2014 ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE AT KALABURAGI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AN
DDECREE DATED 31.10.2014 PASSED IN O.S. NO.327/2009 ON
THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., GULBARGA
AND ETC.,
                                    2



      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The above Second Appeal is filed by the Defendant

to set aside the Judgment and Decree dated 08.12.2017

passed in R.A. No.76/2014 by the Principal Senior Civil

Judge, Kalaburagi and the Judgment and Decree dated

31.10.2014 passed in O.S. No.327/2009 by the V Addl.

Civil Judge and JMFC., Gulbarga.

2. The Parties are referred to as per their ranking

before the Trial Court for the sake of convenience.

3. The Plaintiff instituted a suit in O.S.

No.327/2009 against the Defendant for mandatory

injunction or in the alternative for possession. It is the

case of the Plaintiff that he is the absolute owner and

landlord in respect of an open space bearing CTS No.1432

measuring 41593.4 sq.meters and that his name is

entered in the CTS record; that in the said Jatra Maidan,

the plaintiff's father constructed over head water tank and

there is electricity and water connection to the said tank;

that the Jatra of Sri Sharanabasaveshwara Sadu Maharaj

held in the month of March or April every year and the

Defendant had taken the suit premises as a licencee for a

period of three months on a licence fee of `12,000/- and

that the Defendant paid `8,000/- on 14.04.2008 out of the

said `12,000/-; that the licence expired on 30.06.2008.

However, the Defendant has not vacated the suit premises

after expiry of the licence period. Hence, the Plaintiff

issued a legal notice to the defendant on 22.10.2008

revoking the licence. Since the Defendant not vacated the

suit premises, the Plaintiff filed the said suit.

4. The Defendant entered appearance in the said

suit and filed his Written Statement inter alia, denying the

case of the Plaintiff and contending that the suit premises

is not an open space and that a shed is constructed in the

said place; that the Plaintiff is not the owner of the suit

premises and has no right to evict the Defendant; that the

Defendant has not paid any money to the Plaintiff; it is

denied that the licence period has expired on 30.06.2008;

that the Defendant has duly replied to the legal notice vide

his reply dated 01.012.2008, that the defendant and his

family members are in possession of the suit property for

more than 50 years on their own right. Hence, he seeks

for dismissal of the suit.

5. The Trial Court upon the pleadings of the

parties, framed seven issues. The power of attorney

holder of the Plaintiff was examined as PW.1 and

witnesses PWs.2 to 5 were examined. Exs.P1 to P39 were

marked as exhibits. The Defendant examined himself as

DW.1 and DWs.2 to 7 were examined as witnesses.

Exs.D1 to D84 were marked as Exhibits. A Court witness

was examined as CW.1 and Exs.C1 to C8 were marked as

Exhibits.

6. The Trial Court vide its Judgment and Decree

dated 31.10.2014 partly decreed the suit filed by the

Plaintiff and directed the Defendant to vacate the suit

property and deliver possession of the plaintiff within two

months and further directed to pay `34,000/- to the

Plaintiff for use and occupation of the suit premises. Being

aggrieved, the Defendant preferred Regular Appeal

No.76/2014. The Plaintiff entered appearance in the said

Regular Appeal and contested the same. The First

Appellate Court vide its judgment dated 08.12.2017,

dismissed the said Appeal and confirmed the Judgment

and Decree passed by the Trial Court in O.S. No.327/2009.

Being aggrieved, the present Second Appeal is filed.

7. This Court vide order date 12.01.2023 has framed

the following substantial question of law:

"Whether the judgment and decree passed by the first appellate Court is liable to be set aside and the appeal can be remanded back to the first appellate Court only on the ground that not passing any order either allowing or rejecting the applications filed by the appellant under Order 41 Rule 27 of CPC and under Order 26 Rule 9 of CPC?"

8. It is contended by the learned counsel for the

Appellant/defendant that;

a) During pendency of the Appeal in R.A. No.76/2014 before the First Appellate Court, the defendant had filed two applications under Order 41 Rule 27 of r/w 151 of Code of Civil Procedure, 1908 ( for short 'CPC') and another application under Order 26 Rule 9 r/w Section 151 of CPC and the First Appellate Court without deciding the said applications has dismissed the Appeal vide its judgment dated 08.12.2017 which is liable to be interfered with;

b) That the plaintiff is not the owner of the suit property as is forthcoming as per Ex.D2 which the First Appellate Court failed to take into consideration;

c) That having regard to the fact that the Defendant denied the title of the Plaintiff, the plaintiff ought to have sought for declaration of title, in the absence of which the suit of the Plaintiff is liable to be dismissed.

9. In support of his contentions, learned counsel

for the Defendant has relied on the following judgments:

i) Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and others1

ii) Sugappa and Ors. Vs. Shivashankerappa and Ors.2

iii) Jatinder Singh and Anr. (Minor Through Mother) v. Mehar Singh and Ors Balbir Singh and Anr V. Jatinder Singh and Anr3

iv) Jairam S/o. Nathu Salunke Vs. State of Maharashtra and Another4

v) Balamoni Kistanna & Others Vs. Narayana Reddy5

vi) Smt. P.N. Shylaja Vs. B. Vittala Shetty and others6

vii) Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. And Others7

viii) Sopanrao and another Vs. Syed Mehmood and others8

(2007) 13 SCC 565

RSA No.7209/2010 decided on 06.08.2015, High Court of Karnataka, Gulbarga Bench

AIR 2009 SC 354

(2017) 2 SCC 371

1982 SCC OnLine AP 166

RA 302/2011 DD 29.04.2015, High Court of Karnataka, Bengaluru

(2008) 4 SCC 594

(2019) 7 SCC 76

ix) Kishan Singh (Dead) through Lrs. Vs. Gurpal Singh and Others9

x) Ojamma & Another Vs. Basavarajappa and Others 10

10. Hence, he seeks for allowing of the above

Appeal and granting of the reliefs sought for therein.

11. Per contra, learned counsel for the Plaintiff

vehemently contended that;

a) That the Defendant is a mere licensee and is dragging on the proceedings in one pretext or the other by squatting on the suit property and the Appeal is liable to be dismissed in limine;

b) That this Court is entitled to examine the documents that the Defendant sought to produce as an additional evidence vide his application filed under Order 41 Rule 27 of CPC before the First Appellate Court and the same being ex facie untenable, the Judgment of the First Appellate Court is not liable to be interfered with;

(2010) 8 SCC 775

2020 SCC OnLine Kar 2969

(c) That the application filed by the Appellant under Order 26 Rule 9 of the CPC before the First Appellate Court is ex-facie untenable since there is no dispute as to the identity and location of the suit property and hence, the Judgment of the First Appellate Court is not liable to be interfered with;

(d) That the Defendant is not a rival claimant to the title of the Plaintiff and hence, it is not open to the Defendant to deny the title of the Plaintiff and the Plaintiff need not seek for declaration of title.

(e) The Defendant has not specifically pleaded as to who is the owner of the property and has merely denied the title of the Plaintiff without setting up title in any one else and hence, denial the title of the plaintiff is ex-facie is liable to be rejected and the same has been taken only to protract the proceedings;

12. In support of his contentions, learned counsel

relied on the following judgment:

i) Gurmail Singh and Others Vs. Rajinder Singh11

AIR 2003 Punjab and Haryana 336

13. I have considered the submissions made by

the learned counsel for the Plaintiff and the Defendant and

perused the material on record.

14. Although various contentions have been

putforth by both the learned counsel having regard to the

substantial question of law framed for consideration in the

above appeal, the same is required to be answered before

dealing with the other contentions.

15. Having regard to the contentions of the

Defendant that the applications filed by the Defendant

before the First Appellate Court have not been decided,

this Court vide order dated 10.04.2018 called for the

records.

16. It is forthcoming from a perusal of the records

of the First Appellate Court that the Appellant had filed an

application on 27.6.2016 under Order 41 Rule 27 r/w 151

of CPC wherein he has produced the following documents:

i) Certified copy of the Writ Petition No.201095/2016.

ii) Certified copy of the order passed in W.P. No.201095/2016 dated 30.03.2016.

           iii)   Representations      to       the
                  Corporation dated 30.03.2016.

     17.   The    Respondent/Plaintiff       had     also     filed

objections to the said application dated 27.6.2016.

18. The Defendant had filed application on

03.10.2016 under Order 41 Rule 27 r/w Section 151 of

CPC wherein he has produced the following documents:

           i)     Kranti Kannada Newspaper dated
                  17.08.2016.

           ii)    Janakugu Kannada Daily Newspaper
                  dated 18.08.2016.

           iii)   Prajavani   Kannada        Daily    dated
                  28.08.2016.

19. It is forthcoming that the Appellant has also

filed an application on 08.03.2016 under Order 26 Rule 9

of CPC for Commissioner to be appointed to make local

inspection of the suit property and to give a report as to

whether it is an open space or whether there is a shed.

20. It is clear from the aforementioned that the

Appellant had filed interim applications as noticed above.

But the First Appellate Court had passed the Judgment

dated 08.12.2017 without adjudicating the said

applications.

21. Learned counsel for the Respondent submitted

that the documents produced along with the applications

under Order 41 Rule 27 of CPC is wholly unnecessary and

the said applications are filed only to drag on the

proceedings. He further submits that the newspaper

articles produced would be of no relevance to the defence

of the Defendant. He further submits that the W.P.

No.201095/2016 was filed by the Defendant without

making the Plaintiff as a party and the order dated

30.03.2016 passed by this Court is only to consider the

representations of the Petitioner. That the said

representations dated 30.03.2016 are only for grant of

licence and the said representations also have not been

followed up by the Defendant by initiating any proceedings

for non-consideration of the same, clearly shows that the

intention of the Defendant is only to drag on the

proceedings by attempting to place on record material

which are wholly unnecessary for consideration of the

questions that are required to be adjudicated. That in any

event, the documents which are produced under Order 41

Rule 27 of CPC will not in any manner alter the finding

recorded by the Trial Court while passing the Judgment

and Decree.

22. Learned counsel for the Plaintiff further

submits that the application under Order 26 Rule 9 is also

ex facie untenable since there is no dispute as to the

identity of the suit property.

23. Learned counsel for the Plaintiff in support of

his contentions relies on a judgment of Coordinate Bench

of the Punjab and Haryana High Court in the case of

Gurmail Singh others (supra). However, the said

judgment is not applicable to the facts of the present case

as, in the said case, an application under Order 41 Rule 27

of the CPC was filed before the First Appellate Court, which

was allowed on consent. The contentions put forth before

the High Court in Second Appeal was that, having taken

the documents on record pursuant to allowing of the said

applications, the same were not considered by the First

Appellate Court.

24. A Coordinate Bench of this Court in the case of

Sugappa (supra) while relying on the Judgment of the

Hon'ble Supreme Court in the case of Malayalam

Plantations Limited Vs. State of Karnataka and

Another12 with regard to the procedure to be followed

whenever an application under Order 41 Rule 27 of the

CPC has been filed, has held as follows:

2. Whenever an application is filed under Order 41, Rule 27 r/w Section 151 of CPC, it is incumbent upon the Court to hear arguments not only on the merits but also on the application filed under Order 41, Rule 27 r/w. Section 151 of CPC. If the appellate Court intends to dismiss the said applciation, it has

to pronounce the Judgment on merits. If the appellate Court intends to allow the application, then it has to allow the application and permit the concerned parties to lead additional evidence and defer the decision on merits.

(emphasis supplied)

25. A Coordinate Bench of this Court in the case of

Ojamma (supra) after considering the various judgments

of the Hon'ble Supreme Court with regard to the filing of

an application under Order 41 Rule 27 of CPC has held as

follows:

24. It is to be kept in mind that the First Appeal is a valuable right and the parties have a right to be heard both on question fact and law. Duty is cast on the First Appellate Court to deal with all the issues and evidence led by the parties and decide it by giving reason in support of its findings.

25. In view of the above it is needless to state that whenever an application for leading additional evidence under Order 41 Rule 27 of

(2010) 13 SCC 487

CPC is filed, the First Appellate Court may allow the application or it may dismiss the application. If the application is allowed then the Court has to follow further procedure as contemplated under Order 41 Rule 28 and 29 of CPC. If the application deserves to be dismissed then the Court may pronounce the judgment, but the Appellate Court has to decide the application for additional evidence at the time of disposing the appeal on merits.

(emphasis supplied)

26. Having regard to the settled position of law as

noticed above, it is just and expedient that the Judgment

dated 08.12.2017 be set aside and the matter remanded

to the First Appellate Court for consideration of the interim

applications filed by the Appellant and the Appeal as

noticed above and to adjudicate upon the same in

accordance with law. However, in view of the specific

contention of the Plaintiff that the Defendant is dragging

on the proceedings on one pretext or the other, it is just

and necessary that the matter be remanded by imposing

suitable directions.

27. In view of the aforementioned, I pass the

following:

ORDER

(i) The above Appeal is partly allowed.

(ii) The Judgment dated 08.12.2017 passed

in R.A. No.76/2014 by the Principal Senior Civil

Judge, Kalalburagi is set aside and the matter

is remanded to the First Appellate Court to

adjudicate upon the interim applications filed

by the appellant-defendant in R.A. No.76/2014

while adjudicating upon the main appeal in

accordance with law;

(iii) Both the parties shall appear before the

First Appellate Court on 30.01.2023 without

the requirement of issuing any further notice in

this regard;

(iv) Upon both the parties entering

appearance, the First Appellate Court shall

adjudicate upon the matter in accordance with

law as expeditiously as possible in any event

within a period of 30 days from 30.01.2023.