Karnataka High Court
Ramesh G Shet vs K S Manjunatha on 30 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30071
MSA No. 73 of 2016
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. 73 OF 2016 (RO)
BETWEEN:
RAMESH G. SHET
S/O GANAPATHI SHET
AGED ABOUT 58 YEARS
R/O 3RD CROSS
C.M.C QUARTERS
GARDEN AREA
SHIVAMOGGA-577 201
...APPELLANT
(BY SRI. ARAVIND DESAI, ADVOCATE)
AND:
K.S. MANJUNATHA
S/O SHETTY SHAMANNA
Digitally AGED ABOUT 51 YEARS
signed by R/O KACHINAKATTA VILLAGE
MALATESH TQ AND DIST
KC
SHIVAMOGGA-577 222
Location:
HIGH ...RESPONDENT
COURT OF (BY SRI. SANDESH T.B, ADVOCATE)
KARNATAKA
THIS MSA IS FILED U/O 43 RULE 1(u) OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 05.11.2015 PASSED IN
RA NO.91/2014 ON THE FILE OF THE II ADDL. SR. CIVIL
JUDGE, SHIVAMOGGA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 06.12.2013
PASSED IN OS NO.109/2008 ON THE FILE OF THE IV ADDL.
CIVIL JUDGE AND JMFC., SHIVAMOGGA. REMITTING BACK THE
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MSA No. 73 of 2016
MATTER TO THE TRIAL COURT TO PROCEED IN ACCORDANCE
WITH LAW.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Aravind Desai, learned counsel for the appellant
and Sri Sandesh T.B., learned counsel for the respondent.
2. This second appeal is filed by the plaintiff in
O.S.No.109/2008, on the file of IV Additional Civil Judge and
JMFC., Shivamogga, challenging the order passed in
R.A.No.91/2014, dated 05.11.2015, on the file of II Additional
Senior Civil Judge, Shivamogga, remitting the matter to the
Trial Court for fresh disposal in accordance with law.
3. Facts in brief which are utmost necessary for
disposal of the second appeal are as under:
A suit came to be filed by the plaintiff for the relief of
declaration and possession in O.S.No.109/2018. Initially suit
came to be dismissed. Against which, plaintiff filed an appeal in
R.A.No.119/2010.
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4. Learned Judge in the First Appellate Court after
considering the rival contentions of the parties remitted the
matter to the Trial Court with few directions namely; to appoint
a Court commissioner and also to permit the plaintiff to lead
additional evidence.
5. Post remand, Trial Court complied the order of the
First Appellate Court passed in R.A.No.119/2010 in part
inasmuch as appointed the Taluka surveyor as the Court
commissioner, but did not take into consideration the second
direction issued by the appellate Court in R.A.No.119/2010 in
taking the additional evidence and also to dispose of the matter
by filing appropriate issue.
6. Thereafter, the learned Trial Judge part complying
the directions issued in R.A.No.119/2010 decreed the suit of
the plaintiff. Against which, the defendant filed an appeal in
R.A.No.91/2014.
7. The contentions of the defendant that there was no
proper compliance to the orders passed in R.A.No.119/2010
was accepted by the learned Judge in the First Appellate Court
and also accepted the contentions urged on behalf of the
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defendant that there was no proper issues framed by the
learned Trial Judge post remand and again set aside the
judgment passed in O.S.No.109/2008 and allowed the appeal
and again remitted the matter for fresh disposal in accordance
with law, after affording the parties to lead additional evidence
and also with a specific directions to frame an issue with regard
to the limitation and adverse possession. It is the said order
which is challenged in this second appeal.
8. Sri Aravind Desai learned counsel for the appellant
reiterating the grounds urged in the appeal memorandum
vehemently contended that remitting the matter for the second
time by the First Appellate Court has resulted in miscarriage of
justice and sought for allowing the appeal.
9. Per contra, learned counsel for the respondent
supports the impugned order.
10. Having heard the parties in detail, this Court
perused the material on record meticulously.
11. On such perusal of the material on record it is
crystal clear that the suit is of the year 2008. Suit is one for
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declaration and possession. Defendant has specifically
contended in the written statement that the suit is barred by
limitation as well as the adverse possession.
12. On perusal of the issues framed by the Trial Court,
there is no issue framed by the Trial Court with regard to the
limitation even though there is a specific plea taken by the
defendant in the written statement.
13. Order XIV Rule 5 of Civil Procedure Code mandates
that the Trial Court is bound to frame the issues where the
parties on loggerheads.
14. Non framing of an issue with regard to the
limitation has thus resulted in miscarriage of justice which was
taken note of by the First Appellate Court in R.A.No.91/2014
and remitted the matter to the Trial Court for framing of
additional issue with regard to the limitation and also permit
the parties to make out their case on the additional issue as
well as other issues, as the appellant herein had already filed
an application under Order XLI Rule 27 Civil Procedure Code
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seeking to place additional evidence on record post remand the
order in R.A.No.119/2010.
15. Therefore, remand order passed by the First
Appellate Court which is impugned in this second appeal needs
no interference by this Court by exercising the power vested in
this Court under Order XLIII Rule 1 of Civil Procedure Code.
16. Having said thus, it is seen that no time limit is
fixed by the First Appellate Court while remitting the matter to
the Trial Court after framing the additional issue. Since the suit
is of the year 2008 and the matter was remanded twice, some
time limit has to be fixed for disposal of the suit.
Accordingly, following:
ORDER
(i) Miscellaneous second appeal stands disposed of
by upholding the remand order.
(ii) However, the time is fixed for disposal of the
case afresh in accordance with law till 31st of
March 2025.
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(iii) It is made clear that the Trial Court is bound to
frame the additional issue with regard to the
limitation and then afford suitable opportunities
to the parties and then pass judgment and
decree in accordance with law.
(iv) Parties shall appear before the Trial Court
without further notice on 26th August, 2024.
Sd/-
(V SRISHANANDA)
JUDGE
MR
