Karnataka High Court

Gowramma vs C R Shivappa on 30 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                      NC: 2024:KHC:29957
                                                      MSA No. 7 of 2020




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 30TH DAY OF JULY, 2024

                                         BEFORE

                          THE HON'BLE MR JUSTICE V SRISHANANDA

                    MISCELLANEOUS SECOND APPEAL NO.7 OF 2020 (RO)

                   BETWEEN:

                   GOWRAMMA
                   W/O SHIVANANJAPPA,
                   AGED ABOUT 58 YEARS,
                   R/O CHIGALLAI VILLAGE,
                   KASABA HOBLI,
                   HOLENARASIPURA TALUK,
                   HASSAN DISTICT-576101
                                                         ...APPELLANT
                   (BY SRI VIGNESHWAR S SHASTRY, SR. COUNSEL FOR
                    SRI GURURAJ R, ADVOCATE)
                   AND:
Digitally signed
by DEVIKA M        C R SHIVAPPA
Location: HIGH     S/O RUDRAPPA,
COURT OF
KARNATAKA          AGED ABOUT 60 YEARS,
                   R/O CHIGALLI VILLAGE,
                   KASABA HOBLI,
                   HOLENARASIPURA TALUK,
                   HASSAN DISTICT-576101
                                                         ...RESPONDENT
                   (BY SRI RAJENDRA, ADVOCATE FOR
                    SRI S V PRAKASH, ADVOCATE)

                       THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF
                   THE CPC, AGAINST THE JUDGMENT AND DECREE DATED
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                                         NC: 2024:KHC:29957
                                          MSA No. 7 of 2020




11.11.2019 PASSED IN R.A.NO.24/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, HOLENARASIPURA
AND ETC.

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


                      ORAL JUDGMENT

The present appeal is filed challenging the judgment

passed by the First Appellate Court in R.A.No.24/2013

whereby the learned Judge in the First Appellate Court set

aside the judgment passed in O.S.No.157/2006 and

remitted the matter to the Trial Court for fresh disposal in

accordance with law after appointing a technical person as

Court Commissioner for elucidation of the matter in

dispute and also permitted the parties to adduce additional

evidence and further permitted to amend the plaint in

terms of the observations made by the Court in the

judgment.

2. Heard the learned counsel appearing for the

respective parties.

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3. Sri Vigneshwar Shastry, the learned senior

counsel addressing the arguments on the grounds of

appeal memo contended that the learned Judge in the

First Appellate Court while deciding the lis in question, has

exceeded in his powers conferred by statue under Section

96 of CPC in directing the plaintiff to amend the plaint as

well as permitting to lead additional evidence and also

directing to appoint a Court Commissioner who is a

technical expert for elucidating the dispute in question and

therefore, there is a legal error in exercise of the appellate

jurisdiction resulting in miscarriage of justice and sought

for allowing the appeal.

4. Per contra, the learned counsel appearing for

the respondent supports the impugned judgment.

5. Having heard the learned counsel appearing for

the respective parties, this Court perused the material

available on record meticulously. On such perusal of

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material available on record, the learned Judge in the First

Appellate Court in paragraphs 22 to 27 has held as under:

"22. However, the learned counsel for the respondents placing reliance on the judgments reported in ILR 2009 KAR 3897

- M.C.Suresh V/s. Sri. B. Srinivas Nayak and others, 2012 (3) CCC 577 in the matter of Union of India V/s. Ibrahimuddin and another, ILR 2016 KAR 1051 in the matter of Neueropsychiatry and Critical Care Hospital Pvt., Ltd., V/s. The Authorized Officer, Bank of India, Bangalore and ILR 2016 KAR 2252 in the matter of Punny Akat Philip Raju dead by LR's V/s. Dinesh Reddy, argued that, additional evidence cannot be allowed to be produced for allowing a litigant to patch up the weak parts of his case and appellate Court cannot allow additional evidence only for the purpose of pronouncing judgment in a particular way. Until and unless the requirements stipulated in the provision are made out, the Court cannot allow the application for additional evidence.

23. But as already noticed above in the present case on hand, this Court has noticed that adducing of additional

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evidence in the light of the facts and circumstances of the case is most essential for adjudication of the issues involved in the suit. The defendant himself admits in her oral evidence with regard to the existence of disputed road and its use and utilization by the plaintiff to have access to his property. Therefore, it cannot be said that the plaintiff is trying to patch up the weak parts of his case by way of seeking permission of this Court to adduce additional evidence on his behalf. When the plaintiff is trying to bringing out best piece of evidence for elucidation of the matter in dispute, it cannot be said that he is trying to remove a lacuna in his case by way of adducing additional evidence. In the circumstances of the case, the principles laid down in the judgments relied on behalf of the respondent are distinguishable and they are not applicable to the facts and circumstances of present case on hand. Therefore, the respondents have not made out any grounds to show that, the application for seeking to adduce additional evidence on behalf of the appellant is opposed to the principles of law and

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therefore it cannot be considered. Therefore the appellant has made out grounds to consider his request to adduce additional evidence as prayed for in the application.

24. As regards the amendment sought for under Order 6 Rule 17 CPC, with regard to amendment of pleadings and also the prayer column in the plaint declaring the 'A' schedule road for the use and occupation of the plaintiff, it must be noted that, admittedly it is the specific case of the plaintiff since beginning that, the 'A' schedule road is being used from time immemorial and it has been in existence more than 30 years. In the additional pleadings sought to be incorporated in the plaint he further contended that, he has perfected his right on the suit pathway by way of easement by prescription and as such he is entitled for the relief of declaration of his right with respect to the 'A' schedule road.

25. It is well established principle of law that, all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and

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(b) of being necessary for the purpose of determining the real questions in controversy between the parties. Further, a party cannot be refused the relief of amendment merely because of some mistake, negligence, inadvertence or even infraction of the rule of the procedure.

The Court would always permit the amendment of the pleadings unless it is shown that the party seeking amendment has acted with malafide or that by his blunder had caused injury to the other side which may not be compensated in terms of costs. However negligent or careless may have been the first omission and however late the proposed amendment may have been sought, the amendment may be allowed if it would work no injustice to the other side.

26. Admittedly in the present case on hand, the plaintiff has filed the original suit in the year 2006, wherein he sought only the relief of permanent injunction restraining the defendant from causing obstructions with the usage of 'A' schedule road property. It is also admitted fact on the record that, the plaintiff has not made

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any efforts to bring out the amendment as proposed in the application at hand in the trial Court at any point of time. The plaintiff apart from seeking incorporation of certain pleadings in the plaint with regard to easement by prescription, also seeking relief of declaration in the proposed amendment. The contention of the respondent is that the proposed amendment is barred by limitation. Though the original cause of action with respect to the alleged suit pathway is stated to have been arose during the year 2006, but the plaintiff has not at all made any efforts to bring the said amendment during the stage of original suit proceedings. But, the plaintiff after filing this appeal in the year 2013, he has filed the necessary application under Order 6 Rule 17 in terms of I.A.No.3 before this Court on 23.11.2016. Thus the amendment seeking relief of declaration with respect to the right by way of easement by prescription has been filed merely after 10 years from the showing original cause of action in the original suit. Thus the question of limitation may also arise. Therefore, the amendment sought for in the application has to be considered subject to the plea of limitation. Therefore, it is made clear that,

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the amendment will not relate back to the date of suit, but it relate back to the date of application. Therefore, the proposed amendment sought for in the application deserves to be allowed, subject to the terms stated above.

27. Therefore, having regard to the facts and circumstances of the case and the grounds made out in the appeal, reasonable opportunity could be given to the appellant / plaintiff to putforth his case or to establish his case in accordance with his pleadings and an opportunity could also be afforded to the plaintiff to establish his rights over the disputed property at hand, as otherwise it may result in miscarriage of justice and dispensation of justice delivery system."

6. It is the specific opinion formed by the learned

Judge in the First Appellate Court as could be seen from

the above paragraphs that the material evidence placed on

record is hardly sufficient to thrash out the disputed

aspects of the matter in the case as none of the parties

resorted to utilize the power under Order 26 in the Trial

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Court in getting the Court Commissioner appointed. The

material evidence placed on record was not sufficient for

the Court to arrive at a proper conclusion and therefore, a

learned Judge in the First Appellate Court decided to remit

the matter for allowing the parties to adduce additional

evidence and also permitting the plaintiff to amend the

plaint. The learned Judge also opined that a technical

expert is needed as a Court Commissioner for elucidating

the matter in dispute and such application to be made by

the parties before the Trial Court after the amendment and

additional evidences are placed on record.

7. Though, the learned Judge in the First Appellate

Court has not stated in so many words about that when

the Court Commissioner is to be appointed, it is to be

construed that it is only after the parties place their

respective evidence on record, the Court Commissioner is

to be appointed for finding out the real controversy

between the parties.

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8. In the case on hand, the technical expert is

ordered to be made as a Court Commissioner.

9. So, in other words, the remand order cannot be

straight away faulted with even though precise reasons

are not assigned to fortify the directions issued by the

learned Judge in the First Appellate Court.

10. This Court, while exercising the powers under

Article 227 of the Constitution of India in addition to the

power under Order 43 Rule 1(u) of CPC, can very well

reformulate the directions by supplementing the reasons

in maintaining the directions issued by the First Appellate

Court which would finally resolved the controversy

between the parties.

11. Therefore, the appeal needs to be disposed of

with further more directions as under by passing

appropriate order.

(a) The appeal stands disposed of.

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(b) While maintaining the order of remand by the

First Appellate Court, following directions are issued:

(i) Post remand, the plaintiff shall file an

application for amendment of the plaint within a

week. Thereafter, the defendant shall file

additional written statement. Based on the

additional pleadings, if any additional issue

arises, the Trial Court shall frame the additional

issue within a week thereafter.