Karnataka High Court
Sri. Ramachandra vs Smt. Gayatri on 19 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MSA No. 100001 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO.100001 OF 2020 (RO)
BETWEEN:
1. SRI. RAMACHANDRA
S/O. BASAVANTAPPA AVANDKAR @ SHIMPI,
AGED ABOUT 43 YEARS, OCC: AGRICULTURE,
R/AT: BALAGALI, TQ: SHIGGON,
DIST:HAVERI.
2. SMT. VIJAYA
W/O. NARAYANA SHIMPI,
AGED ABOUT 40 YEARS, OCC: HOUSEHOLD,
R/AT: BALAGALI, TQ: SHIGGON,
DIST:HAVERI.
...APPELLANTS
(BY SMT. DEEPA P. DODDATTI, ADOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
Digitally
signed by
SAMREEN AND:
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date:
2024.02.23
17:07:38
+0530
1. SMT. GAYATRI
W/O. RAVEENDRA AVANDKAR @ SHIMPI,
AGED ABOUT 46 YEARS, OCC: COOLIE,
R/AT: KUNNUR, TQ: SHIGGON,
DIST:HAVERI.
2. SMT. KAVITA
W/O. VITAL NEELAGAR,
AGED ABOUT 25 YEARS, OCC: HOUSEHOLD,
R/AT: NEAR MURUSAVIRMATH, HUBBALLI,
TQ: HUBBALLI, DIST: DHARWAD.
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MSA No. 100001 of 2020
3. SMT. SAVITA
D/O. RAVEENDRA AVANDKAR,
AGED ABOUT 23 YEARS, OCC: HOUSEHOLD WORK,
R/AT: KUNNUR, TQ: SHIGGON,
DIST: HAVERI.
4. SMT. SONAVVA
W/O. BASAVANTAPPA AVANDKAR @ SHIMPI,
AGED ABOUT 74 YEARS, OCC: NIL,
R/AT: KUNNUR, TQ: SHIGGON,
DIST: HAVERI.
...RESPONDENTS
(BY SRI. B.M. PATIL, ADVOCATE FOR R1-R3;
R4 SERVED)
THIS M.S.A. IS FILED U/SEC.41 RULE 1(u) OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED
BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, SHIGGAON PASSED IN RA NO. 106/2017 DATED
31.10.2019 AND CONFIRM THE JUDGMENT AND DECREE
PASSED BY THE CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, SHIGGAON PASSED IN O.S. NO.189/2011
DATED 05.12.2016 BY ALLOWING THE PRESENT APPEAL IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS M.S.A., COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MSA No. 100001 of 2020
JUDGMENT
Heard Smt.Deepa P. Doddatti, learned counsel
representing Sri.Mrutyunjay Tata Bangi, learned counsel
for the appellant and Sri.B.M.Patil, learned counsel for the
respondents.
2. This second appeal is filed challenging the
validity of the judgment and award passed in RA
No.106/2017 (old RA No.04/2017) dated 31.10.2019
whereby, the judgment passed in O.S.No.189/2011 dated
05.12.2016 on the file of Civil Judge and JMFC, Shiggaon,
is set aside and the matter is remitted to the Trial Court
for disposal in accordance with law after raising an
additional issue with regard to the relationship.
3. Brief facts of the case are as under:
A suit came to be filed by Gayatri, Kavita, Savita,
claiming to be the wife and children of Raveendra
Avandkar alias Shimpi against Sonavva, Ramachandra and
Vijaya.
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4. Family tree reads as under:
Basavantappa Ramappa Avandkar @ Shimpi (deceased)
Sonavva (1st wife) Radavva (2nd wife)
Raveendra (deceased) Ramachandra Vinaya
(defendant No.1) (Defendant No.2)
Gayatri (plaintiff No.1)
Kavita (P-2) Savita (P-3)
5. Plaintiffs claim themselves as son born to
Basavantappa Ramappa Avandkar alias Shimpi by name
Raveendra Avandkar alias Shimpi, through first wife
namely Sonavaa.
6. Defendants are Sonavaa, who is the mother in
law of plaintiff No.1 and Ramachandra and Vijaya, who are
children born through Radavva, who is the second wife.
7. Suit on contest came to be dismissed stating
that the plaintiffs failed to make out a case that they are
the wife and children of a son born through the first wife
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namely Sonavva, who is defendant No.1 to Basavantappa
Ramappa Avandkar alias Shimpi.
8. Being not satisfied with the judgment and
decree of the dismissal, plaintiffs filed an appeal before
Senior Civil Judge in RA No.04/2017, which was
transferred to Senior Civil Judge and JMFC, Shiggaon and
got renumbered as RA No.106/2017.
9. Further, the records were secured by the first
Appellate Court and after hearing the parties, the learned
Judge in the First Appellate Court, noted that there was an
application filed raising additional issue and the said
application was not even opposed by the contesting
defendants and therefore, found it just and necessary to
afford an opportunity for the plaintiffs to lead the evidence
and establish that they are the wife and children of
Raveendra Avandkar born to defendant No.1 through
Basavantappa Avandkar.
10. Defendants being the children born to
Basavantappa Avandkar through second wife (Radavva),
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are in appeal challenging the very remitting the matter to
the Trial Court.
11. Smt.Deepa P. Doddatti, learned counsel for the
appellants reiterating the grounds urged in the appeal
memorandum vehemently contended that approach of the
First Appellate court in remitting the matter by exercising
the power under Order XLI Rule 25 of CPC by open
remand is uncalled for and sought for allowing the appeal.
12. Per contra, Sri.B.M.Patil, learned counsel
representing respondents/plaintiffs supported the
impugned judgment by contending that when there is a
dispute as to the relationship among the parties, it is
incumbent for the parties to resort to Section 50 of Indian
Evidence Act and therefore, the First appellate Court not
only raised the additional issue but also permitted the
parties to lead the additional evidence so as to prove that
the plaintiffs are legally wedded wife and children of the
son of Basavantappa Avandkar through first wife namely
Sonavva, who is defendant No.1 in the suit and therefore,
sought for dismissal of the appeal.
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13. Having heard the parties in detail, this Court
perused the material on record meticulously.
14. On such perusal of the material on record, it is
crystal clear that the First Appellate Court has noted that
no proper issues were framed by the Trial Court based on
the rival contentions in the pleadings.
15. Order XIV of C.P.C., allows the parties to seek
for modification of the issues or the Court has got sou-
moto power under Order XIV Rule 5 to frame the
additional issue even at the time of passing of the
judgment. If any such additional issue is framed, suo moto
the only requirement of the Court which frames the
additional issue is to allow the parties to lead further
evidence on record.
16. In the case on hand, even though there are
specific pleadings, the Trial Court failed to raise additional
issue nor parties did not chose to apply for alternation of
the issues by exercising the power vested in the Court
under Order XIV Rule 5 of CPC.
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17. Since, the appeal is a continuation of the suit,
the First Appellate Court has rightly considered the
application filed under Order XLI Rule 27 of CPC and also
considered the necessity of raising the appropriate issue
and therefore, allowed the parties to lead further evidence
and also raise additional issue vide I.A.No.3 filed before
the First Appellate Court.
18. By raising the additional issue and placing
additional evidence on record, substantial justice would be
done in the case on hand as the Trial Court has failed to
frame appropriate issues before proceeding with the
judgment.
19. Hence, appeal grounds are hardly sufficient to
set aside the order of First Appellate Court for remitting
the matter to the Trial Court.
20. Accordingly, following:
ORDER
i. Appeal is allowed.
ii. Having regard to the fact that suit is of the
year 2005, parties shall appear before the
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Trial Court without further notice on
11.03.2024.
iii. Trial Court shall frame the issue vide
I.A.No.3 as filed before the First Appellate
Court and allow the parties to adduce
additional evidence on record. Thereafter
Trial Court shall conclude the hearing of the
suit on or before 31.10.2024.
Sd/-
JUDGE
KAV
