Sadashiva Rao vs Smt. Padmavathi
2024 Latest Caselaw 18865 Kant

Karnataka High Court

Sadashiva Rao vs Smt. Padmavathi on 29 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 NC: 2024:KHC:30073
                                                MSA No. 47 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 29TH DAY OF JULY, 2024
                                    BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
             MISCELLANEOUS SECOND APPEAL No.47 OF 2016(RO)
            BETWEEN:

            1.    SADASHIVA RAO
                  S/O SAYA RAMACHANDRA BHAT,
                  MAJOR,
                  R/A PALADE MANE,
                  NYAYA THARPU GRAMA
                  NALA POST
                  BELTHANGADY TALUK,
                  D.K., DISTRICT-574217.

            2.    ISHWAR BHAT
                  S/O SAYA RAMACHANDRA RAO,
                  R/A DHANWANTARI NILAYA,
                  JAIN PETE,
                  BELTHANGADY POST,
                  BELTHANGADY TALUK,
                  D.K. DISTRICT.
                                                      ...APPELLANTS
Digitally   (BY SRI K SHRIHARI, ADVOCATE)
signed by
MALATESH    AND:
KC
Location:   1.    SMT. PADMAVATHI
HIGH              D/O LAKSHMAMMA,
COURT OF          AGED ABOUT 48 NYEARS,
KARNATAKA         R/A JAIN PETE,
                  GURUVAYANKERE,
                  BELTHANGADY
                  D.K. DISTRICT-574225.

            2.    VENKATRAMANA BHAT
                  S/O KRISHNA BHAT,
                  AGED ABOUT 58 YEARS
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                                     NC: 2024:KHC:30073
                                     MSA No. 47 of 2016




     R/A JAIN PETE,
     GURUVAYANKERE VILLAGE & POST,
     BELTHANGADY
     D.K. DISTRICT-574225.

3.   RATHNA
     D/O LATE THOUDA SHETY,
     W/O SUBBANNA SHETTY
     R/A PONNETHEDU HOUSE,
     KAYYARU VILLAWGE & POST,
     VIA UPPALA KASARGOD TALUK,
     KASARGOD DISTRICT,
     KERAL 670138.

4.   BALAKRISHNA SHETTY
     S/O THOUDA SHETTY,
     AGED ABOUT 54 YEARS
     NALLIGUDDE HOUSE,
     KAVALMUDUR VILLAGE,
     BANTWAL TALUK
     D.K. DISTRICT-574242

5.   GOWRAMMA
     D/O LATE SUBRAYA BHAT,
     AGED ABOUT 78 YEARS,
     R/A JAIN PETE,
     GURUVAYANKERE VILLAGE
     GURUVAYANKERE POST,
     BELTHANGADY D.K.574225.
                                        ...RESPONDENTS
(BY SRI ABHINAV.R, ADVOCATE FOR R1;
VIDE ORDER DATED 11.07.2022 NOTICE TO R2 AND R3 IS
HELD SUFFICIENT;
R4 IS SERVED AND UNREPRESENTED;
SRI M.S.VENUGOPAL, ADVOCATE FOR R5)

      THIS MSA IS FILED UNDER SECTION 104 R/W ORDER
XLIII RULE 1(u) OF THE CPC., AGAINST THE JUDGMENT AND
DECREE DATED 04.03.2016 PASSED IN RA NO.123/2008 ON
THE FILE OF THE I ADDL. DISTRICT JUDGE D.K., MANGALORE,
ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 04.10.2008 PASSED IN O.S.NO.37/1998
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                                              NC: 2024:KHC:30073
                                             MSA No. 47 of 2016




ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.) AND J.M.F.C
(PUTTUR), REMITTING BACK TO THE MATTER TO TRIAL COURT
TO AFFORD AN OPPORTUNITY FOR THE PARTIES TO ADDUCE
EVIDENCE ON THE ADDITIONAL ISSUE AND THEN THE TRIAL
COURT SHALL GIVE A FINDING ON THE SAID ISSUE AFTER
CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES
WITHIN A SPAN OF 4 MONTHS FROM THE DATE OF RECEIPT OF
THIS ORDER ALONG WITH LCR.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA

                       ORAL JUDGMENT

Heard Sri K.Shrihari, learned counsel for the appellants

and Sri Abhinav.R, learned counsel for the respondents.

2. Second appeal is filed by the legal heirs of original

plaintiff in O.S.No.37/1998.

3. Facts of the case in brief, which are utmost necessary for

disposal of the present second appeal are as under:

Appellants herein filed a suit in O.S.No.37/1998 for the

relief of specific performance of the agreement to sell entered

into by Smt.Ratna and Sri Balakrishna Shetty in favour of

original plaintiff/Saya Ramachandra Bhat. To defeat the right

of the original plaintiff, the property was sold to defendant

Nos.3 and 4 is the contention of the plaintiff.

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4. Therefore, plaintiff filed a suit for specific enforcement of

the agreement to sell entered into by defendant No.s1 and 2 in

favour of plaintiff. Suit was contested and ultimately came to

be decreed, against which an appeal in R.A.No.123/2008 came

to be filed by defendant Nos.3 and 4.

5. Appeal was heard and matter was remitted to the trial

court in R.A.No.123/2008. The order passed by the First

Appellate Court dated 22nd February, 2011 was challenged by

plaintiff in MSA No. 50/2011.

6. This Court by the Order dated 01.08.2012 on contest, set

aside the order passed by the First Appellate Court, inter alia

holding as under:

"13. From the reasons assigned by the appellate judge, dit is noticed he has opined the trial court should have recorded a specific finding as to whether defendants had notice of the transaction between the plaintiff and 1st defendant. Absence of recording such finding has compelled him to remand the case. It is also mentioned in the course of the order exercising power of remand under Order XLI Rule 23-A, C.P.C is justified. It is quite obvious appellate judge has ignored the mandate of Rules 24 and 25 of Order XLI, C.P.C. which mandates certain powers to be exercised by the appellate court. Rule 24 reads thus:

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'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 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.'

Therefore, if the trial court had not considered the evidence on record laid by the parties to determine the question arising for consideration under Section 19(b) of the Act, the appellate court should have re-set the issues as permissible under Rule 24 and taken a final decision mandated therein. Besides, Rule 25 cannot be ignored. It envisages, '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 therefore within such time as may be fixed by the Appellate Court or extended by it from time to time. This provision will come into play only if circumstances enumerated in Rule 24 are not made out."

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7. The First Appellate Court even after the order dated

01.08.2012 passed in MSA No.50/2011, considered the matter

on merits and again by the order dated 04.03.2016 remitted

the matter to the trial court for fresh disposal in accordance

with law after raising an additional issue to the effect that

contesting respondents are the bonafide purchasers for value,

who are the appellants in R.A.No.123/2008. Same is called in

question in this appeal by the legal representatives of the

plaintiff.

8. I have heard the arguments of Sri Shrihari, learned

counsel for the appellants and Sri Abhinav.R, learned counsel

for respondent Nos.1 and 2 and perused the records.

9. On such perusal of the material on record, it is crystal

clear that the parties are bound by the order passed by this

Court in MSA No.50/2011 inasmuch as, same has become final

in the absence of challenge by any of the parties.

10. As could be seen from paragraph 13 extracted supra,

First Appellate Court was justified in raising the additional issue

that the appellants therein, who are defendant Nos.3 and 4 in

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the suit, were the bonafide purchasers of the property in

question for value.

11. Having raised the additional issue, since First Appellate

Court had the mechanism of recording evidence and it is a

court of records, power vested under Order XLI, Rule 24 and 25

of the Code of Civil Procedure, should have been resorted by

First Appellate Court and it should have recorded the evidence

on the additional issue if parties were willing to place additional

evidence.

12. Instead, by the order dated 04.03.2016 the learned

Judge first Appellate Court again remitted the matter to the

trial Court to try the additional issue in utter disregard to the

order passed in MSA No.50/2011, which cannot be sustained in

the eye of law.

13. Having said thus, it is the argument of Sri Shrihari,

learned counsel for the appellants that material evidence

already on record was sufficient enough to dispose of the

additional issue also, without affording additional opportunity

for the parties to place additional evidence on record inasmuch

as, admission made by the appellant in R.A No.123/2008 who

NC: 2024:KHC:30073

are defendant Nos.3 and 4 before the trial court was

unambiguous. As such, the only course that was open for the

first Appellate Court was to hear the parties on merits and pass

orders on merits.

14. Said submission of Sri Shrihari, learned counsel is

opposed by Sri Abhinav R, learned counsel for the respondents

stating that whenever additional issue is raised, it is the duty of

the Court to afford an opportunity for the parties to place

additional evidence on record.

15. Order XIV of the Code of Civil Procedure prescribes that

whenever an additional issue is raised in the facts and

circumstances of a particular case, an opportunity needs to be

granted for the parties to place additional evidence and to

address arguments.

16. In the case on hand, issue with regard to whether

defendant Nos.3 and 4 are the bonafide purchasers for value is

an important issue, especially when suit is one for specific

performance which came to be decreed.

NC: 2024:KHC:30073

17. Needless to emphasize that an additional issue, if raised

in Appellate stage or in the suit itself, parties are bound to be

given an opportunity to lead additional evidence. Therefore,

argument put forth on behalf of appellant, that no permission

to be granted for placing additional evidence as overwhelming

evidence already placed on record cannot be countenanced in

law.

18. Right to place additional evidence whenever there is

recasting of issue is a valuable right given to the party by the

Statute itself as is contemplated under Order XIV of the Code of

Civil Procedure. Therefore, that right cannot be denied to a

party.

19. Therefore, the contesting respondents, who are

defendant Nos.3 and 4 before the trial court and appellants in

first Appellate Court in R.A.No.123/2008 are entitled to place

additional evidence on record.

20. Needless to emphasize that burden to establish the said

issue is on the defendants 3 and 4. If at all, the present

appellants intend to place additional evidence by way of

rebuttal evidence they may do so by reserving such a right.

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21. Having said thus, the First Appellate Court having the

mechanism of recording evidence and is a court of records,

ought not to have remitted the matter again to the trial court,

even for calling for a finding on the additional evidence to be

placed by parties on additional issues raised.

22. Therefore, order passed by the first Appellate Court again

referring the matter to the trial court needs interference by this

Court by exercise of powers vested in this Court under Order

XLIII of the Code of Civil Procedure.

23. Hence the following:

ORDER

(i) Second appeal stands allowed in part.

(ii) Order passed by the First Appellate Court in R.A.No.123/2008 is modified as under:

Defendant Nos.3 and 4 who are the appellants in R.A.No.123/2008 are entitled to place additional evidence in respect of additional issue framed by the First Appellate Court.

(iii) The appellants herein, who are the legal representatives of original plaintiff, are entitled to

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place rebuttal evidence on conclusion of additional

by reserving such right.

(iv) First Appellate Court itself shall record the additional evidence and dispose of the appeal in accordance with law.

(v) Taking note of the fact that appeal is of the year 2008, process of recording additional evidence, process of recording additional evidence and hearing parties afresh including additional issue shall be completed on or before 31st December, 2024.

(vi) Needless to emphasize that parties shall co-

operate for the same.

(vii) Office is directed to return the trial court records with copy of this order forthwith.

Sd/-

(V SRISHANANDA) JUDGE kcm