Karnataka High Court
Sri. B. Revappa vs Smt. Igooru Kalamma on 29 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:30074
MSA No. 29 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.29 OF 2016 (RO)
BETWEEN:
1. SRI. B. REVAPPA
S/O. DODDASIDDAPPA,
AGED ABOUT 56 YEARS,
AGRICULTURIST,
R/O. HAMPAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
2. SRI. B. NINGAPPA
S/O. DODDASIDDAPPA,
AGED ABOUT 49 YEARS,
AGRICULTURIST,
R/O. HAMPAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
...APPELLANTS
(BY SRI VIGNESHWARA S. SHASTRY, SR. COUNSEL
Digitally ALONGWITH SRI GURURAJ.R, ADVOCATE)
signed by
MALATESH AND:
KC
Location: 1. SMT. IGOORU KALAMMA
HIGH W/O. IGOORU HANUMANTHAPPA,
COURT OF
KARNATAKA AGED ABOUT 70 YEARS,
AGRICULTURIST,
R/O. HAMPAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
2. SRI. JYOTHI KOTRAPPA
S/O. KALAPPA,
AGED ABOUT 69 YEARS,
-2-
NC: 2024:KHC:30074
MSA No. 29 of 2016
AGRICULTURIST,
R/O. MUTTIGE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-577 001.
3. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT,
DAVANAGERE-577 001.
...RESPONDENTS
(BY SRI S RAJEBNDRA FOR SRI S.V.PRAKASH, ADVOCATE FOR
R1;
R2(A) AND R2(B) ARE SERVED AND UNREPRESENTED;
SRI T.P.MALIPATIL, AGA FOR R3)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
19.12.2015 PASSED IN RA NO.2/14 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, HARAPANAHALLI, ALLOWING
THE APPEAL AND FILED AGAINST JUDGMENT AND DECREE
DATED 10.12.2013 PASSED IN O.S.NO 137/2010 ON THE FILE
OF THE CIVIL JUDGE & JMFC HARAPANAHALLI REMANDING
THE MATTER TO THE TRIAL COURT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
This Miscellaneous Second Appeal is filed by the
Respondent Nos.2 and 3 in RA No.2/2014 on the file of the
Senior Civil Judge and JMFC, Harapanahalli, who were
defendants in O.S.No.137/2010 on the file of the Civil Judge
and JMFC, Harapanahalli, whereby judgment passed in R.A
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No.2/2014 remitting the matter to the Trail Court for fresh
disposal in accordance with law is challenged.
2. Heard Sri Vighneshwar S. Shastri, learned Senior
Advocate for the appellants and Shri Rajendra, advocate, for Sri
S.V. Prakash, learned counsel for the respondents.
3. Facts in brief which are utmost necessary for disposal of
the present Second Appeal are as under:
A suit came to be filed in O.S No.137/2010 on the file of
the Civil Judge and JMFC, Harapanahalli, in respect of
agricultural land situated in K.Kallahalli village, Telagi Hobli,
Harapanahalli taluk in Sy.No.81/1 measuring 4 acres 53 cents
bounded on the East by remaining land at Sy.No.81/1, West by
land belonging to Halamma, North by forest and South by land
belonging to Olekar Bharmappa (hereinafter referred to as 'suit
property') for the relief of declaration and cancellation of
registered sale deed.
4. Suit on contest came to be dismissed by the judgment
dated 10.12.2013. Being aggrieved by the same plaintiff filed
the appeal in R.A.No.2/2014.
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5. Learned Appellate Judge, after securing the records inter
alia, noticed that two applications came to be filed by the
plaintiff, one for amendment of pleadings and one for placing
additional evidence, and considering the same on merits,
allowed those two applications and remitted the matter to the
trial Court for fresh disposal in accordance with law, insofar as
O.S.No.137/2010.
6. Being aggrieved by the same respondent Nos.2 and 3
have preferred this appeal.
7. Sri Vighneshwara S Shastri, learned Senior Advocate
representing the appellants contended that it is settled
principles of law and requires no emphasis that if the First
Appellate Court is having the mechanism to record the
evidence, in such cases, first appellate court should be slowed
down in remitting the matter to the Trial Court unless it is very
much necessary to remit the matter to the trial court for fresh
disposal.
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8. In this regard, he placed reliance on the judgment of this
Court in the case of Shanthaveerappa vs. K.N.
Janardhanachari reported in 2006 SCC Online Kar 730.
9. He also contended that the trial Court has rightly raised
the issue with regard to limitation as well as res judicata and
therefore the present amendment that has been allowed by
First Appellate Court would definitely affect the rights of the
present appellants even after the matter is remitted to the trial
Court and as such, the order of the learned Judge in the First
Appellate Court needs interference by this Court.
10. Per contra, learned counsel for the respondents supports
the impugned judgment.
11. Sri T.P.Malipatil, learned Additional Government Advocate
representing respondent No.3, who was respondent No.4 in the
First Appellate Court, contends that Government is a formal
party and suitable orders be passed.
12. Having heard the parties in detail, there is sufficient force
in the argument put forth on behalf of the appellants that first
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appellate Court ought not to have remitted the matter that too
by open remand.
13. Nevertheless, first Appellate Court having allowed the
application for amendment of the pleadings and permitted the
plaintiff to lead additional evidence and also directed to frame
additional issue if need be with regard to possession of the
property. Since no time limit is fixed by the impugned order, it
is just a necessary for this Court to modify the order of the first
appellate Court by imposing few conditions whereby, even
appellants will have an opportunity of fair trial.
14. Accordingly, the following:
ORDER
(i) Appeal stands disposed of.
(ii) Order passed by the first appellate Court in
R.A.No.2/2014 is modified as under:
Remitting the matter to the trial court for
fresh disposal after allowing IA Nos.2 and
3 filed by appellants, who is the contesting
respondent in this case, is maintained.
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(iii) But, cost of Rs.5,000/- is enhanced to Rs.20,000/-
payable by respondent No.1 to the contesting
respondents who are appellants herein and time
limit for fresh disposal of O.S No.137/2010 is fixed
till 31st December, 2024.
(iv) It is further made clear that admissions, if any,
made by the parties shall not be permitted to be
withdrawn.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
