Dhulappa vs Rameshwaribai
2023 Latest Caselaw 3801 Kant

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                                                      NC: 2023:KHC-K:4666
                                                         MSA No. 200287 of 2022




                               IN THE HIGH COURT OF KARNATAKA,

                                      KALABURAGI BENCH

                             DATED THIS THE 28TH DAY OF JUNE, 2023

                                             BEFORE
                           THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA


                       MISCL SECOND APPEAL NO. 200287 OF 2022 (LA-)
                      BETWEEN:


                      1.   DHULAPPA
                           S/O LATE BASAPPA
                           AGED ABOUT 60 YEARS,
                           OCC.RETIRED CONDUCTOR
                           R/O HOUSE NO.12-2-91
                           HARGERI, BIDAR
                           TQ. DIST.BIDAR 584101.

                                                                    ...APPELLANT
                      (BY SRI. GANESH S KALBURGI ,ADVOCATE)
                      AND:
Digitally signed by
SACHIN
Location: HIGH
COURT OF
KARNATAKA             1.   RAMESHWARIBAI
                           W/O LATE RAMANANDRAO GADJE
                           AGED ABOUT 67 YEARS,
                           OCC.AGRICULTURE AND
                           HOUSEHOLD,
                           R/O KANGTI
                           NOW RESIDING AT HOUSE NO.
                           8-11-39, NEW HOUSING COLONY
                           K.E.B.ROAD, BIDAR-585401.



                                                                 ...RESPONDENT
                      (BY SRI. VEERANI V. NANDI, ADVOCATE FOR RAVI B. PATIL,
                      ADVOCATES FOR RESPONDENT)
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                                   NC: 2023:KHC-K:4666
                                    MSA No. 200287 of 2022




     THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC., PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE
DATED 22.09.2021 PASSED IN R.A.NO.6/2019 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE AND JMFC, AT BIDAR
ALLOWING AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 08.02.2019 PASSED IN O.S.NO.29/2011 ON THE FILE
OF THE I ADDL. CIVIL JUDGE AND JMFC, AT BIDAR.

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


                       JUDGMENT

1. A suit for declaration/cancellation of a registered sale

deed alleged to have been executed by the plaintiff in

favour of defendant was dismissed by the Trial Court.

2. During the trial, the plaintiff had produced the

certified copy of the report of hand writing expert but the

author of the report had not been examined.

3. In appeal, the Appellate Court took note of this fact

and came to the conclusion that it was necessary for the

author of Ex.P17 to be examined and it also found that

there was non-framing of a material issue which caused

injustice to the plaintiff and therefore proceeded to

remand the mater to the Trial.

NC: 2023:KHC-K:4666 MSA No. 200287 of 2022

4. As against the order of remand, the present second

appeal has been filed.

5. Learned counsel contended that the order of remand

cannot be granted as a matter of course and the order of

remand cannot facilitate the plaintiff to cover the loop

holes in her case. He submitted that it was not the case of

the plaintiff that she was denied an opportunity to adduce

all the evidence that she relied upon and since she had

adequate opportunity to adduce all evidence in her

possession, there was no justification for the order of

remand.

6. The Appellate Court in exercise of its appellate

jurisdiction has come to the conclusion that the Trial Court

had not framed a material issue and the plaintiff was also

entitled to examine the author of Ex.P17 i.e., the hand

writing expert to establish her case that the sale deed

relied upon had been forged.

7. It is no doubt true that the learned counsel for the

appellant contends that the report which was secured in a

criminal proceedings were quashed but the fact remains

NC: 2023:KHC-K:4666 MSA No. 200287 of 2022

that there was a report on record indicating that there was

discrepancies in the signature and in the light of this fact,

the Appellate Court, in my view has rightly come to the

conclusion that the plaintiff requires an opportunity to

prove her case and Ex.P17. I find no reason to interfere

with the exercise of discretion by the Appellate Court in

remanding the matter.

8. However, learned counsel for the appellant sought to

place reliance on the judgment rendered by the Hon'ble

Supreme Court in Civil Appeal No.6076/2009.

9. In that case, the Hon'ble Supreme Court had found

that the parties therein had adduced all their evidence and

it was not the case of the parties they were denied any

opportunity and in that context, it was held that the High

Court was wrong in remanding the matter.

10. In this case, admittedly the report was produced but

its author was not examined. Having regard to the fact

that the author of the report at Ex.P17 was a finger hand

writing expert, whose evidence would be crucial for

determination of the controversy involved between the

NC: 2023:KHC-K:4666 MSA No. 200287 of 2022

parties, in my view, the said judgment would have no

application to the present case. Consequently, the appeal

is therefore dismissed.

Sd/-

JUDGE MSR