Karnataka High Court

B.C. Ramachandra Reddy vs B.M. Govinda Reddy on 29 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:30070
                                                  MSA No. 72 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. 72 OF 2016 (RO)
            BETWEEN:

            1.      B.C. RAMACHANDRA REDDY
                    S/O LATE CHINNAPPA @
                    CHINNAPPA REDDY
                    AGED ABOUT 60 YEARS,

            2.      B.C. MUNI REDDY,
                    S/O LATE CHINNAPPA @
                    CHINNAPPA REDDY,
                    AGED ABOUT 56 YEARS

            3.      B.C. KRISHNA REDDY
                    (SINCE DIED BY HIS LR's)

            3(A). SMT. ANUSUYA
                  W/O LATE B.C. KRISHNA REDDY
                  AGED ABOUT 50 YEARS
Digitally
signed by   3(B). SRI. B.K. RANJITH KUMAR
MALATESH
KC                S/O LATE B.C. KRISHNA REDDY
                  AGED ABOUT 29 YEARS
Location:
HIGH
COURT OF    3(C)    SRI. B.K. TRIVEN KUMAR
KARNATAKA           S/O LATE B.C. KRISHNA REDDY
                    AGED ABOUT 27 YEARS

                    ALL ARE RESIDING AT NO.16
                    NEAR DAIRY, BIDARAGUPPE VILLAGE

                    ATTIBELE HOBLI, ANEKAL TALUK
                    BANGALORE URBAN DISTRICT-562 107.
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                                      NC: 2024:KHC:30070
                                      MSA No. 72 of 2016




                                              ...APPELLANTS
(BY SRI. RAVI L. VAIDYA, ADVOCATE)

AND:

1.   B.M. GOVINDA REDDY
     S/O LATE MUNISWAMY REDDY
     AGED ABOUT 51 YEARS,
     RESIDING AT BIDARAGUPPE VILLAGE AND POST
     ATTIBELE HOBLI, ANEKAL TALUK
     BANGALORE URBAN DISTRICT-562 107

2.   SMT. VENKATAGIRIYAMMA
     W/O LATE CHINNAPPA @ CHINNAPPA REDDY
     (SINCE DECEASED BY HER LR's WHO ARE
     ALREADY ON RECORD AS APPELLANT No.1, 2 AND
     RESPONDENT NOS.3 TO 5)

3.   SMT. RADHA
     D/O LATE CHINNAPPA @ CHINNAPPA REDDY
     AGED ABOUT 51 YEARS,
     RESIDING AT MUDUGANAPALLI VILLAGE,
     THUMMANAPALLI POST, BAGALUR HOBLI,
     KRISHNAGIRI DISTRICT-635 103

4.   SMT. VINODA
     D/O LATE CHINNAPPA @ CHINNAPPA REDDY
     AGED ABOUT 49 YEARS,
     RESIDING AT VENKATARAMANA REDDY,
     KADUGODI VILLAGE AND POST,
     K.R.PURAM HOBLI,
     BANGALORE EAST TALUK-560 067

5.   SMT. BHARATHI
     D/O LATE CHINNAPPA @ CHINNAPPA REDDY
     AGED ABOUT 45 YEARS,
     RESIDING AT ATTIBELE VILLAGE AND POST,
     ATTIBELE HOBLI, ANEKAL TALUK,
     BANGALORE URBAN DISTRICT-562 107.
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                                          NC: 2024:KHC:30070
                                       MSA No. 72 of 2016




6.   SRI. NAGAPPA
     S/O LATE HONNAPPA
     AGED ABOUT 65 YEARS,
     RESIDING AT BIDARAGUPPE VILLAGE AND POST,
     ATTIBELE HOBLI, ANEKAL TALUK,
     BANGALORE URBAN DISTRICT-562 107.

                                             ...RESPONDENTS
(BY SRI. B.V. BADRINATH, ADVOCATE FOR R1;
    R3 TO R6 ARE SERVED AND UNREPRESENTED;
    VIDE ORDER DATED 18.12.2023 - R3 TO R5
    ARE LRs OF DECEASED R2)

        THIS MSA IS FILED UNDER ORDER XLIII RULE 1(u) OF
CPC.,    AGAINST   THE   JUDGMENT   AND     DECREE    DATED
03.07.2015 PASSED IN RA NO.13/2010 ON THE FILE OF THE
III ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRUCT, SIT AT ANEKAL, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
04.02.2010 PASSED IN OS NO.246/2003 ON THE FILE OF THE
PRL. CIVIL JUDGE (JR.DN) AND JMFC., ANEKAL, REMANDING
BACK THE MATTER TO THE TRIAL COURT TO DISPOSE OF THE
SUIT IN ACCORDANCE WITH LAW.

        THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:     HON'BLE MR JUSTICE V SRISHANANDA
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                                               NC: 2024:KHC:30070
                                               MSA No. 72 of 2016




                       ORAL JUDGMENT

Heard Sri Ravi L. Vidya, learned counsel for the

appellants and Sri B.V. Badrinath, learned counsel for the

respondent No.1.

2. This Second appeal is filed by the defendants in

O.S.No.246/2003, on the file of Principal Civil Judge (Jr.Dn)

and JMFC., Anekal, challenging the order of remand passed in

R.A.No.13/2010, dated 03.07.2015, on the file of III Additional

District and Sessions Judge, Bengaluru Rural District, Sit at

Anekal.

3. Facts in brief which are utmost necessary for

disposal of the present second appeal are as under:

First respondent B.M. Govinda Reddy, filed a suit in

O.S.No.246/2003 for the relief of declaration. Suit on contest

came to be dismissed by judgment dated 04.02.2010.

4. Being aggrieved by the same, plaintiff filed an

appeal before the First Appellate Court in Regular Appeal

No.13/2010.

NC: 2024:KHC:30070

5. Learned Judge in the First Appellate Court after

considering the rival contentions of the parties, came to the

conclusion that the plaintiff has not made out any case for

placing an additional evidence on record, nor for appointment

of the Court commissioner for local inspection and rejected

both the applications. However, opined that the Trial Court

ought to have framed an issue with regard to the title to the

suit property to be established by the plaintiff and remitted the

matter to the Trial Court for fresh disposal in accordance with

law.

6. Being aggrieved by the same, contesting defendant

Nos.1 to 3 are before this Court.

7. Reiterating the grounds urged in the appeal

memorandum, Sri Ravi L Vaidya, learned counsel for the

appellants vehemently contended that the First Appellate Court

erred in law in remitting the matter to the Trial Court for fresh

disposal in accordance with law, without there being any

conditions especially having found that there was no material

evidence placed on record by the plaintiff which would be in a

position to decide the title of the plaintiff and also taking into

NC: 2024:KHC:30070

consideration the earlier proceedings between the parties which

got finalized by this Court in RSA No.449/1995 and RSA

No.1152/2002 and sought for allowing the appeal.

8. Per contra, Sri B.V. Badrinath, learned counsel for

the respondents supports the impugned order.

9. Having heard the parties in detail this Court

perused the material on record meticulously.

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

crystal clear that in the very same order the learned Judge in

the First Appellate Court dismissed the application filed by the

contesting respondents under Order 41 Rule 27 CPC and under

order 26 Rule 9 CPC.

11. Contesting respondents did not choose to file any

appeal against the said order and therefore, insofar as the

contesting first respondent is concerned, it has become final.

12. Thus, what remains before this Court now is to

consider the fact that the improper framing of issue by the Trial

Court especially when the suit is one for declaration filed by the

plaintiff is justified or not.

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13. Therefore, learned Judge in the First Appellate

Court was justified in directing that an additional issue to be

framed with regard to the title in respect of the suit property to

be established by the plaintiff on the available evidence on

record. For that purpose, the matter was remitted to the Trial

Court to adduce additional evidence by both the parties.

14. When the permission sought for by the plaintiff to

place additional evidence is rejected, by rejecting the

application filed under Order 41 Rule 27 CPC, permitting the

parties to lead additional evidence would not arise. To that

extent, impugned order suffers from legal infirmity calling for

interference by this Court exercising the power vested under

Order XLIII Rule 1 of Civil Procedure Code.

15. Further, since the First Appellate Court itself is the

Court which could have raised the additional issue and decided

the matter by itself especially when it has not permitted the

parties to place additional evidence on record, there was no

necessity of remitting the matter to the Trial Court.

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16. Therefore, the said direction issued by the First

Appellate Court to the Trial Court also needs interference by

this Court in this appeal.

Accordingly, following:

ORDER

(i) Miscellaneous Second Appeal is allowed in part.

(ii) While upholding the order of the learned Judge

in the First Appellate Court to frame an

additional issue with regard to the title, remitting

the matter to the Trial Court for the purpose of

recording the additional evidence on additional

issue by both the parties, is hereby set aside.

(iii) Further, the First Appellate Court itself can raise

the additional issue based on the pleadings and

the material evidence placed on record and

dispose of the appeal in accordance with law.