Karnataka High Court
Smt. Shanthamma vs Sri. Lakshmaiah on 20 September, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:34466
RSA No. 1493 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1493 OF 2018 (DEC/INJ)
BETWEEN:
1. SMT. SHANTHAMMA
W/O. LATE NAGARAJ,
AGED ABOUT 62 YEARS,
2. SRI. N. SATHYA
S/O. LATE NAGARAJ,
AGED ABOUT 42 YEARS,
3. KUM. N. JAYALAKSHMI
D/O. LATE NAGARAJ,
AGED ABOUT 35 YEARS,
APPELLANT Nos.1 TO 3 ARE
R/AT MALUR TOWN,
Digitally signed
by SHARANYA T MALUR-563130.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI A. MADHUSUDHANA RAO, ADVOCATE)
AND:
1. SRI LAKSHMAIAH
DEAD BY LRS.,
1(a) SMT. NARAYANAMMA,
W/O. LATE LAKSHMAIAH,
AGED ABOUT 40 YEARS,
1(b) SRI ANAND
-2-
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RSA No. 1493 of 2018
S/O LATE LAKSHMAIAH,
AGED ABOUT 31 YEARS,
RESPONDENT NOS.1 AND 2 ARE
R/AT DODDA IGGALUR VILLAGE,
MASTI HOBLI,
MALUR TALUK-563130.
...RESPONDENTS
(BY SRI ABHINAV R., ADVOCATE FOR R1(a) AND R1(a))
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 13.04.2018 PASSED IN
R.A.NO.86/2011 ON THE FILE OF THE I ADD. DISTRICT JUDGE,
KOLAR DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 18.07.2011 PASSED IN
O.S.NO.44/2011 (OLD OS.NO.67/2004) ON THE FILE OF THE
SENIOR CIVIL JUDGE MALUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellants' counsel
and also counsel appearing for the respondent.
2. Though this second appeal is filed against
the judgment and decree passed in RA No.86/2011 and
the argument of the counsel for the appellant that when
the application is filed under Order 41 Rule 27 of CPC
before the Trial Court, the same was not considered along
with the judgment and the same is numbered as I.A.No.2
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RSA No. 1493 of 2018
before the Trial Court. The statement of objections is also
filed on I.A.No.2.
3. The counsel for appellant has also submits
that the other applications are also filed and those
applications are not considered by the Trial Court.
4. The counsel for the respondent would
submits that earlier an application is filed under Order 26
Rule 9 and 10 of CPC and the same is numbered as
I.A.No.1. Subsequently, one more application is filed but
earlier itself vide order dated 13.07.2016, the said earlier
application was rejected. The question of considering the
second application does not arise and also the counsel for
respondent has not disputes the fact that an application is
filed under Order 41 Rule 27 of CPC.
5. Having heard the counsel for the
appellants' and also the counsel appearing for the
respondents. The counsel for the appellants brought to
notice of this Court that an application was filed under
Order 41 Rule 27 of CPC R/w Section 151 of CPC dated
18.07.2017 and the objections to I.A.No.2/2022 is also
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RSA No. 1493 of 2018
filed on 22.08.2017. On perusal of the judgment of the
First Appellate Court, when the Court has formulated the
point, it has not formulated any point for consideration of
I.A filed under Order 41 Rule 27 of CPC and the same
ought to have been considered along with the merits. The
appellate Court has only formulated the point as whether
the Trial Court is justified in holding that the defendants
have proved that the plaintiffs have given wrong
boundaries to the suit schedule property and also
formulated the point as whether the plaintiffs have fail to
prove that they are in lawful possession and all these
points are considered on merits and not formulated the
point for consideration of I.A and when such being the
case, the First Appellate Court ought to have considered
the I.A along with main appeal. Hence, the matter requires
to remanded back to consider the application filed under
Order 41 Rule 27 of CPC along with main appeal.
6. In view of the observation of non
considering the application filed under Order 41 Rule 27 of
CPC, the impugned judgment and decree of the appellate
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RSA No. 1493 of 2018
Court requires to be set-aside and the matter has to be
remitted back to the First Appellate Court to consider the
same afresh on merits of the case as well as the I.A filed
under Order 41 Rule 27 of CPC and other applications
which are pending for consideration, to consider the same
in accordance with law.
7. In view of the discussion made above, I
pass the following:
ORDER
The R.S.A is allowed.
The impugned judgment and decree of the First
Appellate Court is se-aside and the matter is remitted back
to the First Appellate Court to decide the same in
accordance with law as observed in the order.
The parties are directed to appear before the First
Appellate Court on 26.10.2023 without expecting any
notice from the First Appellate Court.
The First Appellate Court is directed to dispose of
the appeal within 6 months from 26.10.2023.
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RSA No. 1493 of 2018
The respective counsels are directed to assist the
First Appellate Court to dispose the matter as stipulated.
The Registry is directed to communicate this order
to the First Appellate Court enable the Court to take up
the matter on 26.10.2023.
In view of the disposal of this appeal, pending I.A
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
RHS
