Karnataka High Court
Sri K Thimmappa vs Smt Puttarangamma on 2 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 421 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 421 OF 2015 (INJ)
BETWEEN:
SRI K THIMMAPPA
AGED ABOUT 85 YEARS
S/O GANGASAMUDRADA KARIYAPPA
R/O PRASANNA TALKIES ROAD
CHITRADURGA-577501
...APPELLANT
(BY SRI. K K VASANTH.,ADVOCATE)
AND:
1. SMT PUTTARANGAMMA
AGED ABOUT 58 YEARS
D/O RANGAPPA
R/AT KAVADIGARA HATTI
CHITRADURGA TALUK
CHITRADURGA-577501
Digitally signed
by JAYANNA SINCE DECEASED BY HIS LR
NARAYANAPPA
LAKSHMAMMA
Location: HIGH 2. SMT P V SNEHALATHA
COURT OF AGED ABOUT 35 YEARS
KARNATAKA D/O P S JAYDEVAPPA @ JAYANNA
W/O P S VEERESH
R/AT VARASIDDHI KRUPA
DAVALAGIRI BHADAVANE
1ST STAGE, BHEEMASAMUDRA ROAD
CHITRADURGA CITY-577501
...RESPONDENTS
(BY SRI. MANJUNATH B.K., ADVOCATE FOR R1 & R2)
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RSA No. 421 of 2015
THIS RSA FILED UNDER SEC.100 OF CPC., PRAYING TO CALL
FOR RECORDS IN O.S.NO.16/2004, ON THE FILE OF THE I ADDL.
CIVIL JUDGE (JR. DN), CHITRADURGA AND IN R.A.NO.19/206 ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA,
HEAR THE PARTIES AND PASS A JUDGMENT AND DECREE TO SET
ASIDE THE JUDGMENT AND DECREE DATED 5.1.2006 PASSED IN
O.S.NO.16/2004 BY I ADDL. CIVIL JUDGE (JR. DN.) CHITRADURGA
AND ALSO JUDGEMENT AND DECREE DATED 14.11.2014 IN R.A
NO.19/2006 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE,
CHITRADURGA AND TO PASS SUCH AN ORDERS AS THIS HON'BLE
COURT DEEMS FIT TO PASS, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The Appellant is before this Court seeking for the
following relief:
"Call for records in O.S.No.16/2004, on the file of
the I Addl. Civil Judge (Jr. Dn), Chitradurga and in
R.A.No.19/206 on the file of the I Addl. Senior Civil
Judge, Chitradurga, hear the parties and pass a
judgment and decree to set aside the judgment and
decree dated 5.1.2006 passed in O.S.No.16/2004
by I Addl. Civil Judge (Jr. Dn.) Chitradurga and also
judgement and decree dated 14.11.2014 in R.A
No.19/2006 passed by the I Addl. Senior Civil
Judge, Chitradurga and to pass such an orders as
this Hon'ble Court deems fit to pass, in the interest
of justice and equity."
2. The appellant - plaintiff had filed O.S.No.16/2004
before the I Additional Civil Judge (Jr.Dn.),
Chitradurga for relief of permanent injunction as also
mandatory injunction to demolish the illegal
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construction put up by the defendant in the suit
schedule property. The said suit came to be
dismissed vide judgment and decree dated
05.01.2006 which came to be challenged in
R.A.No.19/2006 before the I Additional Senior Civil
Judge, Chiradurga, which also came to be dismissed
vide judgment 14.11.2014.
3. When the matter was taken up for arguments, none
appeared for the respondents. During the course of
arguments, Sri.K.K.Vasanth, learned counsel for the
appellant submits that the trial Court has considered
Exs.P1 to P8 and the first Appellate Court has also
considered Exs.P1 to P12 and as also made a
reference to Ex.P17. A perusal of trial Court records
indicates that 31 documents were marked by the
plaintiff as Ex.P1 to Ex.P31. Neither the trial Court
nor the first Appellate Court has considered Ex.P18
to Ex.P31. In fact, the trial Court in its judgment has
come to a conclusion that the document marked as
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Ex.P13 had not been produced before it. This is
apparently for the reason that the trial Court had
considered that only Ex.P1 to P8 had been marked
before it.
4. In view of the above peculiar situation, I am left with
no option but to remand the matter to the trial Court
directing the trial Court to consider all the exhibits
which have been marked in accordance with law as
also to consider any application filed by the parties.
In that view of the matter, I pass the following:
ORDER
i) The appeal is allowed on technicality.
ii) The judgment and decree dated 14.11.2014
passed in R.A.No.19/2006 by the I Additional
Senior Civil Judge, Chitradurga as also the
judgment and decree dated 05.02.2006 in
O.S.No.16/2004 passed by I Additional Civil
Judge (Jr.Dn.), Chitradurga are set aside.
iii) The matter is remanded to the I Additional Civil
Judge (Jr.Dn.), Chitradurga to decide the
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matter afresh in terms of the above
observations as expeditiously as possible by
issuing fresh notice to the respondents as also
providing opportunity to the parties.
Sd/-
JUDGE
PRS
