Karnataka High Court

Sri. S. V. Sridhara vs Sri. S. V. Srinath on 1 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                        NC: 2024:KHC:41042
                                                       MSA No. 129 of 2018




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 1ST DAY OF OCTOBER, 2024

                                          BEFORE
                         THE HON'BLE MR JUSTICE V SRISHANANDA
                 MISCELLANEOUS SECOND APPEAL NO.129 OF 2018(RO)
                BETWEEN:

                1.     SRI. S. V. SRIDHARA
                       AGED ABOUT 53 YEARS,
                       S/O. S. VENKATACHALAPATHI,
                       R/O. MARUTHI EXTENSION,
                       MALUR TOWN,
                       KOLAR DISTRICT-563 130.
                                                              ...APPELLANT
                (BY SRI. ABHINAV R, ADVOCATE)
                AND:

                1.      SRI. S. V. SRINATH
                        AGED ABOUT 45 YEARS,
                        S/O. S. VENKATACHALAPATHI,

                2.      SRI. S. V. VENKATACHALAPATHI
                        AGED ABOUT 78 YEARS,
Digitally signed
by MALATESH K           S/O. SEENAPPA,
C
Location: HIGH   3.     SRI. S. V. SRIHARI
COURT OF
KARNATAKA               AGED ABOUT 49 YEARS,
                        S/O. S. VENKATACHALAPATHI,
                        SINCE DEAD REPRESENTED BY LEGAL
                        REPRESENTATIVES

                3(a) SMT.H.M.PARIMALA
                     W/O LATE S.V.SRIHARI
                     AGED ABOUT 41 YEARS

                3(b) KUMARI S. KRUPA
                     D/O LATE S.V.SRIHARI
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                                      MSA No. 129 of 2018




       AGED ABOUT 15 YEARS

3(c)   KUMARI S. PREKSHA
       D/O LATE S.V.SRIHARI
       AGED ABOUT 12 YEARS

       LEGAL REPRESENTATIVES NO.3(b) and 3(c)
       ARE MINORS
       REPRESENTED BY ITS NATURAL GUARDIAN
       MOTHER SMT.PARIMALA

       ALL ARE RESIDING AT MARUTHI EXTENSION
       NEAR SAI BABA TEMPLE
       ARALERI ROAD
       MALUR TOWN
       KOLAR DISTRICT- 563 130

4.     SRI. H. G. VENKATA REDDY
       AGED ABOUT 55 YEARS,
       S/O. GULLA REDDY,
       R/O. H. HOSKOTE VILLAGE,
       LAKKUR HOBLI,
       MALUR TALUK,
       KOLAR DISTRICT-563 160.

5.     SRI. T. M. DEVARAJU
       AGED ABOUT 47 YEARS,
       S/O. MUNISIDDAPPA,
       R/O. TAGGALI HOSAHALLI VILLAGE,
       JADEGENAHALLI VILLAGE,
       HOSKOTE TALUK,
       BENGALURU RURAL DISTRICT-562 114.

6.     SRI. B. V. VEERABHADRAIAH
       AGED ABOUT 62 YEARS,
       S/O. DODDA VEERAIAH,

7.     SRI. B. V. SHIVARUDHRAIAH
       AGED ABOUT 47 YEARS,
       S/O. K.V. VEERABHADRAIAH,
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                                        NC: 2024:KHC:41042
                                     MSA No. 129 of 2018




     RESPONDENTS 6 AND 7 ARE
     RESIDENTS OF BELLARI VILLAGE,
     KASABA HOBLI,
     MALUR TALUK,
     KOLAR DISTRICT-563 130.

8.   SRI. GOPAL REDDY
     AGED ABOUT 62 YEARS,
     S/O. YALLA REDDY,
     RESIDENTS OF H. HOSKOTE VILLAGE,
     LAKKUR VILLAGE,
     MALUR TALUK,
     KOLAR DISTRICT-563 160.

9.   SMT. H. M. PRAMEELA
     AGED ABOUT 42 YEARS,
     R/O. OPP. TO AGRICULTURAL OFFICE,
     ARALERI MAIN ROAD LEFT SIDE,
     MARUTHI EXTENSION,
     MALUR TOWN,
     KOLAR DISTRICT-563 130.
                                           ...RESPONDENTS
[BY SRI N.V.VASANTH, ADVOCATE FOR R1;
SRI VARUN .P, ADVOCATE FOR R2;
SRI VINAYKUMAR.N.D, ADVOCATE FOR R8;
R4, R5, R6, R7 AND R9 ARE SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 06.01.2023, SERVICE OF NOTICE TO
R3(A) IS HELD SUFFICIENT;
R3(B) AND R3(C) ARE MINORS REPRESENTED BY R3(A)]


     THIS MSA IS FILED UNDER ORDER XLIII RULE 1[U] OF
CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED
04.10.2018 PASSED IN RA NO.27/2016 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 08.01.2016 PASSED IN OS NO.14/2012
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MALUR
AND REMANDING BACK THE MATTER TO TRIAL COURT TO
RETRIAL ALONG WITH THE INTERIM APPLICATIONS FILED ON
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                                              NC: 2024:KHC:41042
                                            MSA No. 129 of 2018




BEHALF OF THE APPELLANT/PLAINTIFF IN IA NO.3 TO 6 WITH
DOCUMENTS.

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


                       ORAL JUDGMENT

Heard on the merits of the matter

2. Though the matter is listed for admission, by

consent of the parties, matter is taken up for final disposal.

3. This second appeal is filed by the plaintiff in

O.S.No.14/2012 challenging the order passed by the First

Appellate Court in R.A.No.27/2016, whereby the appeal came

to be allowed and matter is remitted to the Trial Court for fresh

disposal in accordance with law.

4. Facts in brief which are utmost necessary for

disposal of the appeal are as under:

A suit came to be filed in O.S.No.14/2012, seeking 1/3rd

share in the suit properties. Suit on contest came to be partly

decreed. Questioning the validity of the partly decreeing the

suit, plaintiff filed an appeal in R.A.No.27/2016. Learned Judge

in the First Appellate Court instead of considering the appeal on

merits, on flimsy grounds set aside the entire judgment of the

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Trial Court and remitted the suit to the Trial Court for fresh

disposal in accordance with law.

5. The operative portion of the order of the First

Appellate Court reads as under:

"The Appeal filed by the appellant - plaintiff under Order 41 Rule 1 R/w Section 96 of Code Civil Procedure against the judgment and decree passed by learned Senior Civil Judge & JMFC., Malur in O.S.No.14/2012, dated 08.01.2016 is hereby allowed.

The judgment and decree passed by the learned Senior Civil Judge & JMFC., Malur in O.S.No.14/2012, dated 08.01.2016 is hereby set aside.

The matter is remanded to the trial Court under Order 41 Rule 23 (A) of Code of Civil Procedure for retrial along with the interim applications filed on behalf of the appellant/plaintiff in I.A.No.3 to 6 with documents.

The trial Court shall give an opportunity to both the parties for production of documents and also to adduce further evidence if any and adjudicate the present suit along with O.S.No.79/2012 pending on its file, the next date of hearing of which case is on 22.10.2018.

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Both the parties shall appear before the trial Court on 22.10.2018.

The trial Judge is directed to dispose of both the suits within 6 months from the date of receipt of record of this case.

Draw decree accordingly.

Return the LCR to the trial Court along with a copy of this judgment to the trial Court."

6. It is that judgment which is under challenge by the

plaintiff in this appeal.

7. Sri Abhinav Ramanand, learned counsel for the

appellant contended that the learned Judge in the First

Appellate Court failed to understand the scope of the suit and

the right that has been claimed by the plaintiff in the present

suit and the right that has been claimed by the parties in

O.S.No.79/2012.

8. He also contended that the properties which are

subject matter of the present suit are claimed through the

father side as a coparcernery property, whereas subject matter

of the suit in O.S.No.79/2012 is in respect of the properties

which are left behind by the mother. Therefore, the order of

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the First Appellate Court that the plaintiff can claim the rights in

the pending suit in O.S.NO.79/2012 is per se incorrect and

sought for setting aside the order of the First Appellate Court.

9. The second ground on which the impugned order is

assailed is that without deciding I.A.Nos.3 to 6 which were filed

under Order XLI Rule 27, XLI Rule 25 and XLI Rule 23 the First

Appellate Court directed that those I.As., are to be decided by

the Trial Court.

10. Admittedly, application filed under Order XLI Rule

27, XLI Rule 25 and XLI Rule 23 are the powers which are to

be exercised by the First Appellate Court, not by the Trial

Court. The said approach of the First Appellate Court shows

non-application of mind and therefore, sought for allowing the

appeal.

11. Per contra, counsel for respondent while supporting

the impugned order, vehemently contended that application

under Order XLI Rule 27 should have been decided at the time

of deciding the main appeal and other two applications ought to

have been decided by the learned Judge in the First Appellate

Court and remitting the matter to the Trial Court to be decided

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on those applications has rendered is injustice and sought for

passing suitable orders.

12. Having heard the parties, this Court is of the

considered opinion that the very approach of the learned Judge

in the First Appellate Court in directing the Trial Court to

consider I.As.3 to 6 itself shows that there is no application of

judicious mind by the First Appellate Court.

13. Further, the First Appellate Court also erred in

recording a finding that in respect of the remaining properties

which are subject matter in O.S.No.14/2012, the plaintiff can

claim right in O.S.No.79/2012 is again an instance non-

application of mind as the right of the plaintiff in both the suits

are altogether different.

Therefore, the impugned order is suffering from serious

legal infirmities calling for interference by this Court by

exercising the power under Order XLIII CPC.

Hence, the following:

ORDER

Appeal is allowed.

Impugned order is set aside.

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The matter is remitted to the First Appellate Court for

fresh disposal in accordance with law.

Parties shall appear before the First Appellate Court

without further notice on 21st October, 2024. Thereafter the

learned Trial Judge in the First Appellate Court shall dispose of

the appeal on merits after affording suitable opportunity for the

parties on or before 31.03.2025.