Karnataka High Court
Smt. Shobha vs Sri. Raghuram on 18 July, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:25034
MSA No. 106 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO. 106 OF 2022 (RO)
BETWEEN:
1. SMT. SHOBHA
D/O LATE A.M. SRIDHAR
AGED ABOUT 52 YEARS
R/AT K.B. EXTENSION
DAVANAGERE.
2. SMT. SUCHITA
D/O LATE A.M. SRIDHAR
AGED ABOUT 50 YEARS
R/AT J.C. NAGAR
BANGALORE.
3. SMT. JAYASHREE
D/O LATE A.M. SRIDHAR
AGED ABOUT 49 YEARS
Digitally signed
by SHARANYA T R/AT ATTIGADDE HOUSE
Location: HIGH CAR STREET, THIRGHAHALLI PO
COURT OF SHIMOGA DISTRICT -577 202.
KARNATAKA
...APPELLANTS
(BY SRI. K.P.BHUVAN, ADVOCATE)
AND:
1. SRI. RAGHURAM
S/O LATE CHANDRASHEKAR
AGED ABOUT 52 YEARS
NEAR SRI KOLLUR TEMPLE
KUNDAPURA TALUK POST
KOLLUR -576 201.
-2-
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MSA No. 106 of 2022
2. SMT. SUJAYA
D/O LATE A.M. SRIDHAR
AGED ABOUT 50 YEARS
R/AT NAYAGOA
MUMBAI -400 001.
...RESPONDENTS
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE FOR R1;
VIDE ORDER DATED 08.11.2022,
NOTICE TO R2 IS DISPENSED WITH)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2022
PASSED IN R.A.NO.41/2008 ON THE FILE OF THE SENIOR
CIVIL JUDGE, KUNDAPURA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
17.11.2004 PASSED IN O.S.NO.105/1985 ON THE FILE OF THE
II ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC, KUNDAPURA
AND REMANDING BACK THE MATTER TO THE TRIAL COURT
FOR DIRECTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellants counsel and also the counsel
appearing for the respondents.
2. The factual matrix of the case before the trial Court is
that the plaintiffs have filed the suit for the relief of possession
contending that defendant is a tenant on monthly rent of
Rs.50/- and defendant also claimed the adverse possession in
the said suit. The trial Court framed the issues with regard to
whether the plaintiff proves that he had title over the A
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MSA No. 106 of 2022
schedule property and B schedule property and defendant
proves that he was in possession of A schedule property and he
constructed the plaint B schedule house and he perfected the
title over the suit schedule property and whether the suit is
barred by time and ultimately the trial Court has decreed the
suit and the same is challenged before the appellate Court. The
appellate Court having considered the grounds urged in he
appeal, formulated the points with regard to, whether the
plaintiffs were able to establish before the trial Court that
defendant was put in possession of B schedule property based
on oral lease and also whether there is valid termination and
whether the trial Court has framed material issues and first
appellate Court comes to the conclusion that these two points
does not survive for consideration and comes to the conclusion
that issues framed by the trial Court is not proper issues in
view of the pleadings between the parties and committed an
error and hence allowed the appeal by setting aside the order
of the trial Court and remanded the same with a direction to re-
admit the same and frame additional issues as suggested by
the Court in the body of the judgment in paragraph No.18 and
afford opportunity to both the parties in confining to additional
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MSA No. 106 of 2022
issues only and disposal of the matter afresh as early as
possible. The said order has been challenged before this Court.
3. The counsel appearing for the appellants would
vehemently contend that no need to remand the matter and
already material available before the Court and the appellate
Court ought to have considered the same and the very object
of framing the issues is, parties to know the lis between them
and an opportunity has to be given to both of them to
substantiate their contention. When the proper issues are not
framed, considering the pleadings of the parties, the first
appellate Court rightly remanded the matter to consider the
matter afresh in view of additional issues to be framed as
already framed by the first appellate Court which is mentioned
in paragraph No.18. When such being the case, I do not find
any error committed by the first appellate Court in remanding
the matter.
4. However, the first appellate Court failed to direct the
trial Court for time bound disposal, since suit was filed in the
year 1984 and the same is re-numbered as suit No.105/1985
and suit was also disposed of on 17.4.2004, almost two
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MSA No. 106 of 2022
decades have been elapsed and appeal also filed in the year
2005 and the same is re-numbered as RA No.41/2008 and the
same was also pending before the appellate Court for a period
of 17 years and almost 17 years parties are before the Court.
5. It is unfortunate that when the plaintiff approached the
Court seeking the relief, for a period of 37 years, he could not
get the relief and hence, it is appropriate to direct the trial
Court to dispose of the same within a period of three months.
6. The parties are directed to appear before the trial
Court on the date already fixed by the trial Court and from that
date matter has to be disposed of within a period of three
months and parties not to seek any unnecessary adjournments
and assist the trial Court in disposal of the same within a
stipulated period and no further time will be granted in future
for disposal of the case since the matter is pending from the
last 37 years.
Sd/-
JUDGE
AP
