Karnataka High Court
Mrs. Marceline D Souza vs Mr Edward D Souza on 2 August, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:30739
MSA No. 44 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 44 OF 2023 (RO)
BETWEEN:
1. MRS. MARCELINE D'SOUZA,
W/O LATE KALISHTA D'SOUZA,
AGED ABOUT 62 YEARS,
2. MR. KISHORE D'SOUZA,
S/O LATE KALISHTA D'SOUZA,
AGED ABOUT 37 YEARS,
3. PRAVEEN D'SOUZA,
S/O LATE KALISHTA D'SOUZA,
AGED ABOUT 35 YEARS,
4. MS. NISHA D'SOUZA,
D/O LATE KALISHTA D'SOUZA,
AGED ABOUT 32 YEARS,
Digitally
signed by
MALATESH ALL ARE RESIDING AT
KC
NO.4-167, ADAM KUDRU,
Location:
HIGH PERMANNUR POST, MANGALURU,
COURT OF D.K. DISTRICT - 575 017.
KARNATAKA
...APPELLANTS
(BY SRI. K. RAVISHANKAR, ADVOCATE)
AND:
MR. EDWARD D'SOUZA,
S/O THOMAS D'SOUZA,
-2-
NC: 2024:KHC:30739
MSA No. 44 of 2023
AGED ABOUT 81 YEARS,
R/AT NO. 4-165, ADAM KUDRU,
PERMANNUR POST, MANGALURU,
D.K. DISTRICT - 575 017.
...RESPONDENT
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)
THIS MSA IS FILED UNDER SECTION 43 RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
10.02.2023 PASSED IN RA NO.71/2021 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
D.K. ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 20.03.2021 PASSED IN OS
NO.156/2014 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
AND MANGALURU.DK., MATTER IS REMANDED BACK TO THE
TRIAL COURT TO HEAR BOTH PARTIES ON THE APPLICATION
FOR APPOINTMENT OF COURT COMMISSIONER.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.K.Ravishankar, learned counsel for the
appellants and Sri.Cyril Prasad Pais, learned counsel for
the respondent.
2. The present second appeal is filed challenging
the order passed in RA No.71/2021 dated 10.02.2023 on
the file of I Addl. Senior Civil Judge and CJM, Mangaluru,
Dakshina Kannada whereby, the judgment passed in
NC: 2024:KHC:30739
O.S.No.156/2014 dated 20.03.2021 on the file of I Addl.
Civil Judge, Dakshina Kannada, came to be set aside and
matter was remitted to the Trial Court for fresh disposal in
accordance with law.
3. Brief facts of the case which are utmost
necessary for disposal of the appeal are as under:
3.1. A suit came to be filed in O.S.No.156/2014 by
the plaintiff with a prayer for declaration and prohibitory
injunction on the ground of right of easement of necessity
in respect of the road which is morefully described in the
schedule to the plaint. Suit on contest came to be
dismissed.
3.2. Unsuccessful plaintiff preferred an appeal before
the First Appellate Court on the ground that the learned
Trial Judge did not consider the application filed by the
plaintiff under Order XXVI Rule 9 of CPC for appointment
of a Advocate Commissioner to find out the existence of
the road as is claimed in the suit schedule and alternate
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road pleaded by the defendants and the convenience there
on.
3.3. Without deciding the said application before the
conclusion of the trial, learned Trial Judge considered the
said application along with the main suit and then
recorded a finding that the plaintiff failed to prove the
existence of the suit road and therefore, dismissed the suit
as well as the application for appointment of
Commissioner.
4. Learned Judge in the First Appellate Court, in
paragraph Nos.23 and 24 has held as under:
"23. I am of the opinion that, when the dispute
relates to the accurate measurement of the "RRR"
road, there is a need for appointment of
commissioner and it will arise only after the parties
have adduced evidence in regard to the matter in
issue. The trial court ought to have appointed the
commissioner for better appreciating the evidence
on record. Undoubtedly, it is the discretionary
power of the trial court to appoint the commissioner
to discover the "RRR" road and its accurate
measurement. But the discretionary power should
be exercised judiciously. The Trial Court kept the
interlocutory application pending and rendered
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Judgment. The order sheet of the trial court
dated:15-03-2021 read as follows;
"Advocate for plaintiff filed an application
for appointment of court commissioner.
Heard the Advocate for plaintiff on reply.
Call on for Judgment."
24. In the judgment it is observed by the trial court
that, plaintiff did not make out a case for easement
of necessity, therefore appointing the commissioner
on I.A. will not arise. It seems that trial court is
preconceived before judgment itself there exist no
easement of necessity. It is completely arbitrary
and the plaintiff is left with no option to challenge
the decision of the trial court in this appeal. The
discretionary province of the trial court has been
hurried to record disposal of the case causing
miscarriage of justice. In view of it, I answer point
No.1 in the affirmative."
5. Taking objections to the same, present appeal
is filed by the defendant.
6. Having heard the parties in detail, this Court
perused the material on record meticulously.
7. On such perusal of the material on record, the
plaintiff has come up with a plea that the suit filed by the
plaintiff is based on right of easement and plaintiff has
perfected the right to use the road mentioned in the plaint
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schedule for a prescribed limit of time and therefore,
action of the defendants in blocking the road so as to deny
the right of ingress and egress to the property of the
plaintiff is incorrect and sought for declaration.
8. The said suit on contest came to be dismissed
primarily on the ground that plaintiff failed to establish
that there existed a road which he was using for the
prescribed period of time and in fact there is an alternate
road to reach the plaintiff's property.
9. Being aggrieved by the same, plaintiff filed an
appeal before the First Appellate Court in RA No.71/2021.
10. Learned Judge in the First Appellate Court took
into consideration the relevant aspects including the suit
sketch wherein, the disputed property is marked as 'RRR'
and found that the application seeking appointment of the
Commissioner as prayed for by the plaintiff should have
been decided by the Court below before deciding the suit
on merits and then set aside the judgment and decree
passed by the Trial Court.
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11. Whenever an interim application is filed, same
is to be decided before the conclusion of the main matter,
is the dictum of this Court in the case of Veera Vahana
Udyog Private Limited, Represented by its Managing
Director V/s. The Karnataka State Road Transport
Corporation, Represented by Managing Director and
Others reported in ILR 2010 KAR 507.
12. Accordingly, the remand order passed by the
First Appellate Court needs no interference especially
having regard to the scope of the appeal as is
contemplated under Order XLIII of CPC.
13. However, since the suit is of the year 2014,
open remand made by the First Appellate Court needs to
be fine tuned by directing the Trial Court to conclude the
suit within a specific time frame.
14. Hence, the following:
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ORDER
i. Appeal stands disposed of.
ii. While maintaining the remand order, parties
are directed to be present before the Trial
Court without further notice on 26.08.2024.
Thereafter, learned Trial Judge shall consider
the application for appointment of the
Commissioner and hear the parties on merits
and conclude the suit on or before
30.11.2024.
iii. Needless to emphasize, parties are directed to
cooperate for the early disposal of the suit.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
