Karnataka High Court
Sri H S Govindaraju vs Sri H N Lakshmana on 31 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30180
MSA No. 8 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 8 OF 2018
BETWEEN:
SRI H S GOVINDARAJU,
S/O. LATE SEENAPPA,
AGED ABOUT 37 YEARS,
R/O. RAMAMANDIRA ST,
HALAGUR, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
...APPELLANT
(BY SRI. M B CHANDRA CHOODA.,ADVOCATE)
AND:
1. SRI. H N LAKSHMANA,
S/O. NARASIMHAIAH,
AGED ABOUT 53 YEARS,
Digitally signed R/O. MUSLIM BLOCK, HALAGUR,
by SHARADA MALAVALLI TALUK,
VANI B MANDYA DISTRICT - 571 430.
Location: HIGH
COURT OF
KARNATAKA 2. SMT. SHAKEELA BHANU,
W/O. LATE. AMJAD PASHA,
AGED ABOUT 45 YEARS,
3. SUMAYYA BHANU,
D/O. LATE. AMJAD PASHA,
AGED ABOUT 25 YEARS,
4. THASMIYA BHANU
D/O. LATE. AMJAD PASHA,
AGED ABOUT 23 YEARS,
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MSA No. 8 of 2018
RESPONDENTS NO. 2 TO 4 ARE
R/O HALAGUR, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
5. SRI. B G SIDDAPAJI,
S/O NOT KNOWN TO THE APPELLANT,
AGED :MAJOR,
EXCISE CONTRACTOR,
BELAKAVADI VILLAGE,
BG PURA HOBI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
...RESPONDENTS
(BY SRI. R S RAVI., SENIOR ADVOCATE FOR
SRI. L RAJA., ADVOCATE FOR R1;
R2, R4 & R5 ARE SERVED AND UNREPRESENTED;
V.C.O DATED 31/10/2023 NOTICE TO R3 IS HELD
SUFFICIENT)
THIS MSA FILED UNDER ORDER 43 RULE 1(U) OF THE
CPC, AGAINST THE JUDGMENT AND DECREE DATED
17.11.2017 PASSED IN R.A.NO.12/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE MALAVALLI, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 22.01.2014 PASSED IN O.S.NO.2/2008 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE & JMFC, MALAVALLI AND
REMITTING THE MATTER BACK TO THE TRIAL COURT FOR
FRESH DISPOSAL.
THIS MSA COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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MSA No. 8 of 2018
ORAL JUDGMENT
Heard Sri M.B.Chandra Chooda, learned counsel for
the appellant and Sri R.S.Ravi, learned Sr. Advocate for
the respondent.
2. This second appeal is filed challenging the
judgment dated 17.11.2017 passed in R.A.No.12/2014
remitting the matter to the trial court for considering the
additional evidence and also to frame additional issues.
3. Facts in brief which are utmost necessary for
disposal of the appeal are as under:
The case came to be filed by the plaintiff that he is the
absolute owner in possession of the suit property having
purchased the same from Kunnappa s/o Obegowda on
31.03.1999 under registered sale deed. Thereafter, he
applied for conversion of the land into non-agricultural
purpose by filing necessary application before the
Assistant Commissioner, Mandya. The said application
was allowed and the land which was in possession of the
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plaintiff was converted to non-agricultural purpose. It is
further contended that the suit land was abating to
Kollegala-Kanakpura National Highway and when the
application was filed to transfer the revenue entries to
Grama Panchayat, Halagur, the 1st Defendant being the
money lender and also into chit fund business, 2nd
Defendant being the owner of wine shop, started
interfering with the peaceful possession and enjoyment of
the suit property resulting in the plaintiff approaching the
court for relief of declaration and consequential reliefs.
The suit on contest came to be dismissed.
4. Being aggrieved by the same, the plaintiff filed
appeal before the Civil Judge, Sr. Division,Malavalli which
was numbered as R.A.No.12/2014.
5. The learned Judge of the First Appellate Court
after considering the rival contentions of the parties and
on securing the records, allowed the appeal and remitted
the matter to the trial court for recording additional
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evidence and also to frame additional issue and thereafter
fro fresh disposal in accordance with law.
6. Being aggrieved by the same, the 2nd respondent
who was the 2nd defendant before the trial court, preferred
the present appeal.
7. Sri M.B.Chandra Chooda, learned counsel
reiterating the grounds urged in the appeal memorandum
contended that since the First Appellate Court had the
mechanism of recording the additional evidence and the
additional document that has been placed on record is
nothing but a non-cognizable report in respect of a
criminal complaint said to have been given by the plaintiff
to the jurisdictional police and only for that purpose, the
matter should not have been remitted to the Trial Court.
8. He also pointed out that what is the additional
issue on which the First Appellate Court remitted the
matter to the Trial Court is also not spelt out in the order
of the First Appellate Court resulting in miscarriage of
justice and sought for allowing the appeal.
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9. Per contra Sri R.S.Ravi, learned Senior Advocate
appearing for the contesting respondent-plaintiff,
supports the impugned order. However he submits that
there is no objection on behalf of the plaintiff if the
additional evidence and additional issue, if any, is framed
by the First Appellate Court itself and proceed to dispose
of the appeal on merits by exercising the power under
Order XLI Rule 25 of CPC, 1908 and prays for passing
appropriate orders.
10. Having heard the parties, this court perused
the material placed on record meticulously. Admittedly
the suit of the plaintiff came to be dismissed by the Trial
Court. Before the First Appellate Court the additional
document in the form of additional evidence placed on
record is an endorsement issued by the jurisdictional
police on the police complaint said to have been given by
the plaintiff to the effect that the offence alleged in the
complaint is a non-cognizable offence. Therefore an
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endorsement came to be issued which is sought to be
placed on record.
11. Admittedly what is the effect of such a
document on the merits of the matter is to be decided by
considering the probative value by the concerned court.
Only for said purpose remitting the matter to the Trial
Court would result in injustice.
12. Further, if an additional issue is necessary for
resolution of dispute having regard to the rival contentions
of the parties, the First Appellate Court itself can frame
additional issue and permit the parties to place additional
evidence, if need be on the additional issue and then
record a finding and pass an order on merits of the appeal.
Only for the said purpose, remitting the matter to the Trial
Court by the First Appellate Court therefore needs
interference by this court by exercising the powers vested
in this court under Order XLIII CPC.
13. Hence the following:
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ORDER
(i) The appeal is allowed in part.
(ii) While maintaining the finding of the
First Appellate Court with regard to the
taking of additional evidence on record
and additional issue, if any, to be
framed, the order passed by the First
Appellate Court directing the matter to
be remitted to the Trial Court for fresh
disposal in accordance with law is
hereby set aside.
(iii) Instead, the learned Judge of the First
Appellate Court can itself can frame
additional issue and based on the
additional evidence on record afford
suitable opportunity for the parties to
lead additional evidence, if any, and
dispose of the appeal on merits in
accordance with law.
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(iv) The parties shall appear before the
First Appellate Court without further
notice on 24.08.2024.
(v) Thereafter, the learned Judge of First
Appellate Court shall dispose of the
appeal on merits on or before
31.12.2024.
(vi) It is needless to emphasize that the
parties shall co-operate for the same.
No orders as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
SNB
