Karnataka High Court
Sulochanamma vs S. N. Basavaraja on 15 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:20627
MSA No. 6 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO. 6 OF 2023 (RO)
BETWEEN:
1. SULOCHANAMMA
W/O. LATE B.N. MANJUNATHAPPA
AGED ABOUT 82 YEARS
2. DIVAKARA B.M
S/O. LATE B.N. MANJUNATHAPPA
AGED ABOUT 57 YEARS
APPELLANTS 1 AND 2 ARE
RESIDENTS OF DODDAPETE
SHIKARIPURA-577 427,
SHIVAMOGGA DISTIRCT
3. B.M. SHUBAKARA
S/O. LATE B.N. MANJUNATHAPPA
AGED ABOUT 50 YEARS
R/O. NO.2227, 1ST FLOOR
Digitally signed 7TH MAIN, S. RAMESH ROAD
by SHARANYA T T. DASARAHALLI
Location: HIGH
COURT OF BENGALURU-560 007.
KARNATAKA ...APPELLANTS
(BY SRI P.N. HARISH, ADVOCATE)
AND:
1. S. N. BASAVARAJA
S/O. B.S. NAGESHAPPA
AGED ABOUT 61 YEARS
R/O. HOSABELAVANUR VILLAGE
DAVNAGERE DISTRICT-577 001.
...RESPONDENT
(BY SMT. CHANNAMMA S., ADVOCATE)
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NC: 2023:KHC:20627
MSA No. 6 of 2023
THIS MSA IS FILED UNDER ORDER XLIII RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
14.12.2022 PASSED IN RA.NO.81/2021 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DAVANAGERE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 02.11.2021 PASSED IN OS.NO.24/2010
ON THE FILE OF THE PRINCIPAL CIVL JDUGE, DAVANGARE,
REMANDING THE MATTER BACK TO THE TRIAL COURT, SO AS
TO FRAME NECESSARY ISSUE AS CONTENDED BY THE
DEFENDANTS IN PAGE NO.6 OF WRITTEN STATEMENT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondent.
2. This miscellaneous second appeal is filed
questioning the order of remand dated 14.12.2022 passed in
R.A.No.81/2021 on the file of the Principle Senior Civil Judge
and CJM at Davanagere.
3. The learned counsel of the appellants would
contend that though several grounds are urged in the appeal,
the First Appellate Court committed an error in directing the
Trial Court only to frame necessary issue as contended by the
defendants in Page No.6 of the written statement and afford an
opportunity to both the parties to lead evidence on their behalf,
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MSA No. 6 of 2023
if any. It is also contended that other grounds urged by the
appellants are not considered by the First Appellate Court.
4. Having considered the judgment and decree of the
First Appellate Court, the First Appellate Court has set aside the
entire judgment and decree and not remanded the matter to
the Trial Court only to frame particular issue which has not
been considered i.e., with regard to the defence taken in Page
No.6 of the written statement but, also to frame appropriate
issue and hence, the First Appellate Court directed the Trial
Court to frame necessary issue and afford an opportunity to
both the parties to lead evidence on their behalf, if any.
5. When such an order is passed, the learned counsel
for the appellants cannot find fault with the same since, the
remand is not only for framing particular issue involved
between the parties and once the judgment and decree is set
aside, the matter has to be considered afresh, though the
matter is remitted to the Trial Court to frame necessary issue
with regard to the defence taken in Page No.6 of the written
statement and consider the matter on merits afresh.
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MSA No. 6 of 2023
With the above observations, the miscellaneous second
appeal is dismissed.
Sd/-
JUDGE
ST
