Karnataka High Court
Shri. Balu S/O Ramu Malikwade vs Smt. Chandrabai W/O Naiku Bakale on 26 July, 2024
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NC: 2024:KHC-D:10637
RSA No. 100081 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100081 OF 2018 (PAR-)
BETWEEN:
1. SHRI. BALU S/O RAMU MALIKWADE
@ THARKAR, AGE:48 YEARS,
OCC:AGRICULTURE,
R/O:MADDI GALLI,
SADALAGA TQ:CHIKKODI
DIST:BELAGAVI PIN:591239.
2. SHRI BABU S/O RAMU MALIKWADE
@ THARKAR, AGE:43 YEARS,
OCC:AGRICULTURE
R/O:PRAKASH NAGAR,
NEAR WATER TANK,
SADALAGA, TQ:CHIKKODI,
DIST:BELAGAVI,
PIN:591239.
Digitally signed 3. SMT. SHARUBAI @ SHAKUBAI
by SAROJA W/O:MHADEV MALIKWADE @ THARKAR
HANGARAKI
AGE:65 YEARS, OCC:AGRICULTURE
Location: HIGH & HOUSEHOLD WORK
COURT OF
KARNATAKA R/O:MADDI GALLI, SADALAGA
DHARWAD TQ:CHIKKODI, DIST:BELAGAVI
BENCH PIN:591239.
DHARWAD
4. RAJU S/O MHADEV MALIKWADE @ THARKAR
AGE:45 YEARS, OCC:AGRICULTURE
R/O:MADDI GALLI, SADALAGA
TQ:CHIKKODI, DIST:BELAGAVI
PIN:591239.
5. SHRI SANJU JS/O MHADEV MALIKWADE
@ THARKAR, AGE:41 YEARS,
OCC:AGRICULTURE, R/O:PRAKASH NAGAR,
NEAR WATER TANK SADALAGA
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NC: 2024:KHC-D:10637
RSA No. 100081 of 2018
TQ:CHIKKODI, DIST:BELAGAVI
PIN:591239.
6. SHRI ARJUN S/O MHADEV MALIKWADE
@ THARKAR, AGE:43 YEARS,
OCC:AGRICULTURE,
R/O:PRAKASH NAGAR
NEAR WATER TANK SADALAGA
TQ:CHIKKODI, DIST:BELAGAVI
PIN:591239.
7. SHRI KALLAPPA S/O APPAJI MALIKWADE
@ THARKAR, AGE:73 YEARS,
OCC:AGRICULTURE,
R/O:PRAKASH NAGAR
NEAR WATER TANK SADALAGA
TQ:CHIKKODI, DIST:BELAGAVI
PIN:591239
...APPELLANTS
(BY SRI SHIVARAJ P MUDHOL, ADVOCATE)
AND:
1. SMT. CHANDRABAI W/O NAIKU BAKALE
AGE:63 YEARS, OCC:AGRICULTURE,
@ HOUSEHOLD WORK
R/O:MADDI GALLI, NEAR ISAL TEMPLE
SADALAGA, TQ:CHIKKODI, DIST:BELAGAVI.
PIN:591239.
2. SHRI HARIBA S/O TUKARAM KHEBUDE
AGE:63 YEARS, OCC:AGRICULTURE,
R/O:BUDIHAL, TQ:CHIKKODI
DIST:BELAGAVI- PIN:591104.
3. SMT. TARABAI W/O ADAPPA SANGANNAVAR
AGE:68 YEARS, OCC:AGRICULTURE,
R/O:BHOJ ROAD, SANGANNAVAR MALA
BEDKIHAL, TQ:CHIKKODI
DIST:BELAGAVI PIN:591214.
...RESPONDENTS
(BY SMT SURABHI KULKARNI, ADVOCATE;
SRI R.M.KULKARNI, RAGHUVEER R. STTIGERI FOR R1 AND R3;
R2 SERVED)
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NC: 2024:KHC-D:10637
RSA No. 100081 of 2018
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 30.11.2017 PASSED BY THE
SENIOR CIVIL JUDGE, CHIKKODI IN R.ANO.19/2013 AND JUDGMENT
AND DECREE DATED 21.03.2013 PASSED BY THE PRL. CIVIL JUDGE
AND JMFC, CHIKKODI IN O.S.NO.351/2010, CONSEQUENTLY
DISMISS THE SUIT FILED BY THE PLAINTIFF BY ALLOWING THIS
APPEAL.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard submissions of learned counsel
Sri.Shivaraj.P.Mudhol for the appellants and learned counsel
Smt.Surabhi Kulkarni for respondents No.1 and 3.
2. The present second appeal is filed by defendants No.1
to 7 under Section 100 of Code of Civil Procedure, 19081
challenging the judgment and decree dated 30.11.2017 passed
in R.A No.19/2013 by the Senior Civil Judge, Chikodi2.
3. This Court, vide order dated 18.07.2024, admitted the
above appeal and framed the following substantial question of
law.
'Whether the First Appellate Court was
justified in dismissing the appeal without
filed by the appellants before the First
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'first appellate Court'
NC: 2024:KHC-D:10637
Appellate Court under Order 41 Rule 27 and
Order 16 Rule 1 of the CPC respectively?'
4. The primary contention put forth by learned counsel
for the appellants is that the appellants herein who were also
the appellants before the First Appellate Court, had filed an
application in I.A Nos.1 and 2 in the first appeal and the First
Appellate Court without reference to the said applications, by
its judgment dated 30.11.2017, dismissed the appeal. Hence,
he submits that the judgment of the First Appellate Court is
required to be set aside and the matter is required to be
remanded to the First Appellate Court for consideration of the
applications filed by the appellants along with the appeal.
5. Per contra, learned counsel appearing for respondents
No.1 and 3 submits that even if the documents filed along with
the applications, are looked into, the same would not make a
difference to the adjudication on merits in as much as the
contention of the defendants was that there was a prior
partition in the month of May-2010 and the suit for partition
has been filed on 19.11.2010. It is further pointed out that the
document No.4 sought to be produced before the First
Appellate Court is a certified copy of a partition deed dated
NC: 2024:KHC-D:10637
08.12.2011. Hence, it is contended that the said document
having come into existence during the pendency of the
proceedings before the Trial Court, will not have a difference
with regard to the rights of the parties. Hence, he seeks for
dismissal of the above appeal.
6. The submissions made by both the learned counsels
have been considered and material on record including the
records of the First Appellate Court has been perused.
7. It is forthcoming from the order sheet in R.A
No.19/2013 that on 03.03.2016, it has been recorded that the
appellants have filed I.A No.1 under Order 41 Rule 27 of the
CPC and I.A No.2 under Order 16 Rule 1 of the CPC. The
records of the First Appellate Court would also indicate that I.A
Nos.1 and 2 has been filed and that a list of documents along
with 8 documents have been filed before the First Appellate
Court. It is further forthcoming from the judgment of the first
Appellate Court that there is no reference to the said
applications and no orders have been passed on the same.
8. Learned counsel for the appellants further relies on a
judgment of Co-ordinate Bench of this Court in the case of
Shri.Kedari Mashnu Gurav and another Vs.
NC: 2024:KHC-D:10637
Shri.Pandurang Mashnu Gurav and others3, wherein, it has
been held as follows:
"11. Record of the appeal filed in the lower
Appellate Court shows that, I.A 2 filed by the
appellants was opposed by the respondent and the
lower Appellate Court ordered to take up I.A 2 along
with the main appeal. I.A 2 had remained pending
throughout as no order was passed on it by the lower
Appellate Court. There is no dispute that, I.A 2 has
remained un-disposed of by the lower Appellate
Court. The judgment and decree passed by the lower
Appellate Court is vitiated on account of non-
consideration and disposal of I.A 2 filed in the appeal.
12. In the circumstances, without expressing any
opinion on the merits of the claim made in I.A 2 by
the appellants, I am of the view that, I.A 2 ought to
have been considered and decided by lower Appellate
Court, before deciding the appeal. Non consideration
and disposal of I.A 2 has led to miscarriage of justice
and hence, the judgment and decree passed by the
lower Appellate Court being vitiated, cannot be
upheld."
(emphasis supplied)
9. It is clear form the aforementioned that the First
Appellate Court not having considered the application, the
judgment and decree passed by the First Appellate Court will be
(2015) 1 KCCR 304
NC: 2024:KHC-D:10637
required to be set aside and the matter will be required to be
remanded for the purpose of consideration of same.
10. The vehement contention of the learned counsel for
the respondents that even consideration of the documents
produced along with the said application, will not make a
difference to the case of the appellants is not required to be
favourably considered having regard to the fact that the
application under Order 41 Rule 27 of the CPC has been filed
before the First Appellate Court. The right of first appeal under
Section 96 of the CPC is a valuable one, which requires the First
Appellate Court to re-appreciate the facts as well as the legal
partition. The scope of second appeal under Section 100 of the
CPC is distinct from the scope of consideration that is required
to be done by the First Appellate Court under Section 96 of the
CPC. Hence, it is impermissible in law for this Court to look into
the documents produced along with the applications which were
filed before the First Appellate Court and considering the same
for the purpose of adjudicating of the rights of the parties.
11. In view of the aforementioned, the substantial
question of law is answered in the negative.
12. Hence, the following:
NC: 2024:KHC-D:10637
ORDER
i. The above appeal is allowed.
ii. The judgment and decree dated 30.11.2017
passed in R.A No.19/2013 by the Senior Civil
Judge, Chikodi, is set aside.
iii. The parties shall appear before the First Appellate
Court on 25.09.2024, without the requirement of
any further notice being issued in this regard.
iv. Consequent to the appearance of the parties, the
First Appellate Court shall adjudicate upon
applications and the appeal in accordance with
law.
v. All contentions of the parties left open.
vi. Registry to transmit the records forthwith.
Sd/-
JUDGE
PMP
CT:GSM
