Karnataka High Court
Shri Shankar Shiddappa Chungadi vs Shri Neelakant Basalingappa ... on 5 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MSA No. 100011 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO.100011 OF 2023
(DEC/INJ)
BETWEEN:
1. SHRI. SHANKAR SHIDDAPPA CHUNGADI,
AGE. 61 YEARS, OCC. SERVICE,
2. SHRI. SHRIDHAR SHIDDAPPA CHUNGADI,
AGE. 48 YEARS, OCC. SERVICE,
3. SMT. SHANTAWWA W/O. BASAVANEPPA RAHUT,
AGE. 68 YEARS, OCC. HOUSEHOLD WORK,
4. SMT. KASHAWWA W/O. SIDDAPPA CHUNGADI,
AGE. 88 YEARS, OCC. HOUSEHOLD WORK,
ALL ARE R/O. BAZAR GALLI, M.K. HUBLI,
TQ. BAILHONGAL, DIST. BELAGAVI-591118.
...APPELLANTS
Digitally
(BY SRI. SANTOSH B.RAWOOT, AND
signed by
BHARATHI H SRI. GIREESH C. KATTIMANI, ADVOCATES)
BHARATHI M
HM Date:
2024.01.22
15:08:50 AND:
+0530
1. SHRI. NEELAKANT BASALINGAPPA INDISHETTER,
AGE. 37 YEARS, OCC. AGRICULTURE,
2. SHRI VISHAL BASALINGAPPA INDISHETTER,
AGE. 34 YEARS, OCC. AGRICULTURE,
BOTH ARE R/O. MAGYANKOPP, TQ. KHANAPUR,
DIST. BELAGAVI-591302.
...RESPONDENTS
(NOTICE TO R1 AND R2 SERVED)
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MSA No. 100011 of 2023
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER 43 RULE 1(U) OF THE CODE OF CIVIL PROCEDURE,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE, DATED 14.12.2022 PASSED BY THE
LEARNED IX ADDL DISTRICT JUDGE BELAGAVI IN RA
NO.238/2012 BY RESERVING THE JUDGMENT AND DECREE
PASSED BY THE SENIOR CIVIL JUDGE KHANAPUR IN OS
NO.29/2010 DATE 10.10.2012 IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard Sri.Santosh B Rawoot, learned counsel or the
appellants. There is no representation on behalf of the
respondents.
2. The present miscellaneous second appeal is
directed against the order passed by the XI Additional
District Judge, Belagavi in R.A.No.238/2012 dated
14.12.2022.
3. Facts in brief which are utmost necessary for
disposal of this miscellaneous second appeal are as under:
A suit came to be filed in O.S.No.29/2010 on the file
of Senior Civil Judge, Khanapur seeking the relief of
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declaration and injunction in respect of immovable
property which is an agricultural land situated at
Mangyankoppa village, Khanapur taluk, Belagavi District.
The suit on contest came to be decreed as under:
ORDER
The suit is decreed partly. No order as to costs.
It is declared that the plaintiffs are the absolute owners
of the suit properties and release deed dated: 26-07-2008
purporting to be executed by late. Sharadabi W/o
Neelakantappa Indishettar infavour of defendants No-1 and 2
in regard to suit schedule properties is not binding on the
plaintiffs.
The plaintiffs are entitled to for possession of suit
properties from the defendants.
The defendants, their agents, servants, or anybody
acting on their behalf, are hereby permanently restrained from
interfering with the peaceful possession, enjoyment and
cultivation of the below shown suit schedule lands by the
plaintiffs in any manner.
Schedule
All agricultural lands situated at Mangyankoppa village,
Taluk:Khanapur, District: Belgaum.
Sl. Sy.No. Extent Assessment Village Valuation
No. A.Gs. Anna Rs.Ps
Mangyan
1. 38/1A 00-02-04 2,000
kop
2. 274/1A 3-00-00 10-06 -do- 1,50,000
3. 274/1B 4-00-00 16-00 -do- 2,00,000
0-33-00
4. 274/2 00-69 -do- 40,000
(Portion)
5. 274/3 2-25-00 02-37 -do- 1,50,000
6. 274/6 0-14-00 01-68 -do- 15,000
7. 274/7 00-28-00 03-52 -do- 40,000
8. 74/12 00-20-00 01-60 -do- 30,000
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(20 G out
of 33 G)
9. 274/15 00-06-00 00-55 -do- 5,000
10. 274/20 00-09-00 00-21 -do- 10,000
11. 274/23 00-13-00 00-62 -do- 15,000
00-38-04
(Out of 18
12. 326 22-70 -do- 60,000
acres 02
gunthas)
4. Being aggrieved by the order of decreeing the
suit, the defendants therein filed a regular appeal before
the XI Additional District Judge, Belagavi which was
registered in R.A.No.238/2012.
5. On merit, the regular appeal came to be
allowed by judgment dated 14.12.2022, whereunder the
First Appellate Court allowed the applications filed by the
defendants under Order VI Rule 17 of CPC to amend the
written statement and under Order XLI Rule 27 of CPC to
produce additional evidence and set aside the judgment
and decree passed in O.S.No.29/2010 and remitted the
matter to the trial Court for fresh disposal in accordance
with law.
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6. Being aggrieved by the same, the plaintiffs
have preferred the present miscellaneous second appeal
under Order XLIII Rule 1(U) of CPC.
7. Reiterating the grounds urged in the appeal
memorandum, Sri.Santosh B Rawoot, learned counsel for
the appellants contended that the approach of the First
Appellate Court in remanding the matter and directing
fresh disposal of the suit after allowing the applications for
amendment of written statement and additional evidence
has resulted in miscarriage of justice and therefore sought
for allowing the appeal.
8. Notice of the present miscellaneous second
appeal is issued to the respondents. Notices are served on
the respondents and they have remained absent.
9. In view of the contentions urged on behalf of
the appellants, this Court perused the material on record
meticulously. On such perusal of the material on record, it
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is an admitted fact that the suit came to be decreed after
contest in O.S.No.29/2010.
10. Being aggrieved by the same, the defendants
preferred appeal in R.A.No.238/2012 inter alia filed
application under Order VI Rule 17 of CPC seeking
amendment of written statement and also application
under Order XLI Rule 27 of CPC seeking permission to
place additional evidence on record.
11. The learned Judge in the First Appellate Court
after hearing the parties, raised the following points:
1. Whether the Trial Court has properly appreciated the oral
and documentary evidence produced on behalf of the
parties?
2. Whether the matter is to be remitted back?
3. What order or decree?
12. The learned Judge in the First Appellate Court,
after considering the rival contentions of the parties,
allowed the appeal filed by the defendants and set aside
the judgment and decree passed in O.S.No.29/2010 dated
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10.10.2012 and remitted the matter to the trial Court for
fresh disposal in accordance with law.
13. Sri.Santosh B Rawoot, learned counsel for the
appellants drew attention of this Court that approach of
the First Appellate Court is totally erroneous in view of the
provisions under Order XLI Rule 23 and Rules 23-A, 24
and 25 of CPC. For ready reference, Order 41 Rule 23 and
Rules 23-A, 24 and 25 are extracted hereunder:
"23. Remand of case by Appellate Court. Where the Court
from whose decree an appeal is preferred has disposed of the
suit upon a preliminary point and the decree is reversed in
appeal, the Appellate Court may, if it thinks fit, by order
remand the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a copy of
its judgment and order to the Court from whose decree the
appeal is preferred, with directions to re-admit the suit under
its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during
the original trial shall, subject to all just exceptions, be
evidence during the trial after remand.
[23-A. Remand in other cases. Where the Court from whose
decree an appeal is preferred has disposed of the case
otherwise than on a preliminary a point, and the decree is
reversed in appeal and a re-trial is considered necessary, the
Appellate Court shall have the same powers as it has under rule
23.]
24. Where evidence on record sufficient, Appellate Court
may determine case finally.-Where the evidence upon the
record is sufficient to enable the Appellate Court to pronounce
judgment, the Appellate Court may, after resettling the issues,
if necessary, finally determine the suit, notwithstanding that the
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judgment of the Court from whose decree the appeal is
preferred has proceeded wholly upon some ground other than
that on which the Appellate Court proceeds.
25. Where Appellate Court may frame issues and refer
them for trial to Court whose decree appealed from.
Where the Court from whose decree the appeal is preferred has
omitted to frame or try any issue, or to determine any question
of fact, which appears to the Appellate Court essential to the
right decision of the suit upon the merits, the Appellate Court
may, if necessary, frame issues, and refer the same for trial to
the Court from whose decree the appeal is preferred and in
such case shall direct such Court to take the additional evidence
required;
and such Court shall proceed to try such issues, and shall
return the evidence to the Appellate Court together with its
findings thereon and the reasons therefor [within such time as
may be fixed by the Appellate Court or extended by it from time
to time]."
14. As could be seen from the points that have
been raised in the first appeal in R.A.No.238/2012, the
First Appellate Court has not raised any point with regard
to necessity for allowing the amendment to the written
statement nor it has raised any point for accepting the
additional evidence though in paragraph No.39 there is
mention that I.A's filed under Order VI Rule 17 of CPC and
Order XLI Rule 27 of CPC are allowed.
15. In this regard though there is discussion in
paragraph Ns.29 to 36, the learned Judge in the First
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Appellate Court has taken into consideration necessity for
allowing the amendment as well as the additional
evidence. The procedure contemplated under Order XLI
Rule 25 of CPC could have been resorted to inasmuch as
only with regard to additional evidence and additional
pleadings an issue could have been raised and finding
could have been called for from the trial Court on the
amended pleading and additional evidence on record as is
contemplated under Order XLI Rule 25 of CPC.
16. The First Appellate Court instead of adopting
such a course, has set aside the entire judgment and
decree of the trial Court and remitted the matter to the
trial Court for fresh disposal in accordance with law
resulting in miscarriage of justice.
17. Therefore, a case is made out for setting aside
the said order of remand by the appellants.
18. Resultantly, following order is passed:
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ORDER
(i) The appeal is allowed.
(ii) Impugned judgment and decree passed in
R.A.No.238/2012 is hereby set aside.
(iii) The matter is remitted to the First Appellate
Court to decide the appeal in accordance with
law keeping in view the powers vested in the
First Appellate Court under Order XLI Rule 25 of
CPC.
(iv) No order as to costs.
Sd/-
JUDGE
SH
