Karnataka High Court
Sri Gurushanthappa vs Sri Karibasappa on 4 September, 2024
Author: V Srishananda
Bench: V Srishananda
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MSA No. 72 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 72 OF 2022
BETWEEN:
1. SRI. GURUSHANTHAPPA
S/O THADAPATHRE SIDDAPPA,
AGED ABOUT 57 YEARS,
2. SRI. RAMAPPA
S/O THADAPATHRE SIDDAPPA,
AGED ABOUT 59 YEARS,
3. SMT. PARVATHAMMA
S/O LATE. GOWDRA SIDDAPPA,
AGED ABOUT 79 YEARS,
4. SMT. RADHAMMA
W/O LATE. BASAVARAJAPPA
AGED ABOUT 59 YEARS,
5. SRI. KRISHNAMURTHY
S/O LATE. GOWDRA SIDDAPPA,
Digitally signed by AGED ABOUT 57 YERS,
VEDAVATHI A K
Location: High
Court of 6. SMT. YASHODAMMA
Karnataka D/O LATE GOWDRA SIDDAPPA,
AGED ABOUT 55 YEARS,
R/O MADAKERE VILLAGE,
MADADAKERE HOBLI,
HOSADURGA TALUK - 577 527.
7. SMT. INDRAMMA
W/O NAGARAJA D M,
ADVOCATE, D/O LATE GOWDRA SIDDAPPA,
AGED ABOUT 53 YEARS,
RESIDENT OF HIRIYUR TOWN,
CHITRADURGA DISTRICT- 577 527.
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MSA No. 72 of 2022
8. SMT. GAYATHRAMMA
W/O G S LAKKAPPA,
D/O LATE GOWDRA SIDDAPPA,
AGED ABOUT 51 YEARS,
TEACHER, R/O NEAR P G SCHOOL,
HOSADURGA TOWN, HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
9. SRI. HALASWAMY
S/O LATE GOWDRA SIDDAPPA,
AGED ABOUT 49 YEARS,
APPELLANT NO.1 TO 5 AND 9 ARE
RESIDING OF RAMAJJANAHALLY VILLAGE,
MADADAKERE HOBLI, HOSADURGA TALUK,
CHITRADURGA DISTRICT- 577 527.
...APPELLANTS
(BY SRI. B. M. SIDDAPPA, ADVOCATE (VC) )
AND:
1. SRI. KARIBASAPPA
S/O GURUSIDDAPPA,
AGED ABOUT 62 YEARS,
2. SMT. PARVATHAMMA
W/O LATE. SHANKARAPPA,
AGED ABOUT 53 YEARS,
BOTH ARE AGRICULTURISTS,
R/O RAMAJJANAHALLY VILLAGE,
MADADAKERE HOBLI, HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
...RESPONDENTS
(BY SRI. A.C. BALARAJ, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) R/W
SECTION 104 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 08.06.2022 PASSED IN RA.NO.44/2019 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, HOSADURGA, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 28.10.2019 PASSED IN OS.NO.296/2011 ON THE FILE OF
THE ADDL. CIVIL JUDGE AND JMFC, HOSADURGA. REMANDING
BACK THE MATTER TO THE TRAIL COURT.
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MSA No. 72 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Though the matter is listed for admission matter is
taken up for final disposal with consent of the parties.
2. Heard Sri.B.M.Siddappa, learned counsel for
appellants and Sri.A.C.Balaraj, learned counsel for
respondent No.2. Respondent No.2 is served and
unrepresented.
3. The defendants filed this appeal challenging the
order passed in R.A.No.44/2019 by the Senior Civil Judge
and JMFC, Hosadurga, whereby the learned judge in the
first appellate court set aside the judgment and decree
passed in O.S.No.296/2011 by the Addl. Civil Judge and
Judicial Magistrate first class, Hosadurga, and to remit the
matter back to the trial court for fresh disposal in
accordance with law.
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4. Brief facts of the case which are utmost necessary
for disposal of the appeal are as under:
5. A suit came to be filed by the respondents herein
in O.S.No.296/2011 for the permanent injunction in
respect of the immovable property which is land in
Sy.No.73/3A measuring 4 acres situated at Ramajjanahalli
village, Madadakere Hobli, Hosadurga Taluk, Chitradurga
district and land in respect of Schedule 'B' to the suit
property is to the extent of 1 acre 3 guntas of 'A' schedule
property. The suit on contest, came to be dismissed
against which plaintiffs filed an appeal before the first
appellate court in R.A.No.44/2019.
6. Learned judge in the first appellate court ignoring
the fact that there was already a Commissioner Report
marked at Ex.C6, ignoring this report, allowed the appeal
with a direction to appoint a fresh commissioner and also
allowed the appointment of fresh Court Commissioner and
also allowed the application filed by the plaintiffs to amend
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the plaint. The operative portion of the first appellate
court reads as under;-
": O R D E R :
The appeal is filed by the
appellants/plaintiffs U/o. XLI
rule 1 of CPC is hereby allowed.
Consequently, the judgment and
decree passed by the Addl. Civil
Judge & JMFC., Hosadurga in
O.S.No.296/2011 on28/10/2019
is hereby set aside.
IA.6 an application U/o 26 rule 9
of CPC filed by appellant
No.2/plaintiff No.2 is hereby
allowed.
IA.7 an application U/o 6 rule
17 of CPC filed by appellant
No.2/plaintiff No.2 is hereby
allowed with cost of Rs.5,000/-
paybale to defendants.
Matter is remanded back to the
trial Court. Appellant is
permitted to amend the plaint
before the trial Court. Further
trial Court is directed to appoint
DDLR as Court commissioner to
know the encroachment.
Further, trial court is directed to
permit the both parties to lead
evidence and to decide afresh.
Further both parties are hereby
directed to appear before the
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trial court without taking any
notice on 11/07/2022.
Appellant is directed to pay cost
to respondent before trial Court.
Draw decree accordingly."
7. Being aggrieved with the same, the defendants
are before this court and this appeal.
8. Learned counsel for the appellant
Sri.B.M.Siddappa, reiterated the grounds urged in the
appeal memorandum contended that the approach of the
first appellate court in appointing fresh Court
Commissioner is totally against the material evidence
already available on record resulting in miscarriage of the
justice and sought for allowing the appeal.
9. Per contra, Sri.A.C.Balaraj, learned counsel for
the contesting respondent-plaintiff supports the impugned
judgment.
10. Having heard the parties in detail, this court
perused the material on record meticulously. On such
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perusal of the materials on record, it is crystal clear in the
trial court itself, a Court Commissioner was appointed and
Court Commissioner had already visited the suit schedule
property. Based on the material evidence placed on the
record by the parties, measured the lands and also given a
clear report with a sketch. The same is ignored by the
learned judge in the first appellate court while passing the
impugned order and directed a fresh Commissioner to be
appointed.
11. Unless there is a clear and categorical contest
by the parties, who are interested in questioning the
Commissioner's report, the first appellate court ought to
have, ventured to appoint a fresh Court Commissioner. It
is pertinent to note that the plaintiffs did not chose to file
any objections to the Commissioner's report, marked at
Ex.P.C6. The learned judge in the first appellate court
ignoring the same has made a tangential observation that
the survey was conducted before the land was poded. It
is not the case of parties that the property was poded
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either during the pendency of the suit or during the
pendency of the appeal.
12. Under such circumstances, the very reasoning
assigned by the first appellate court for appointing the
fresh Court Commissioner and remitting the matter back
to the trial court for fresh disposal in accordance with law
is suffering from legal infirmity warranting the
discretionary powers vested in this court under Order 43
Rule 1 of CPC to be exercised in favour of the appellant
herein.
13. Further, if the plaint is amended, the first
appellate court in the court of records had the mechanism
of recording the evidence, could have decided the case by
itself by resorting to the power vested in the first appellate
court under Order 41 Rule 24 CPC. Accordingly, this court
is of the considered opinion that the case is made out by
the appellants to set aside the order and remit the matter
to the first appellate court itself to decide the matter
based on the material evidence on record and additional
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evidence, if any, to be placed in respect of the amended
pleadings to the parties and to dispose of the appeal in a
time bound manner.
Accordingly following order;
ORDER
(i) This appeal is allowed.
(ii) Impugned order in R.A.No.44/2019 dated
08.06.2022 passed by the Senior Civil Judge and JMFC,
Hosadurga, is hereby set aside.
(iii) The matter is remitted to the first appellate
court for fresh disposal in accordance with law, with the
available materials and after affording the necessary
opportunities for the parties in respect of amendment to
the plaint and after raising additional issues, if any, on
account of the amendment to the pleadings in accordance
with law.
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(iv) The parties shall appear before the first
appellate court without further notice on 26.9.2024.
Sd/-
(V SRISHANANDA)
JUDGE
AKV
CT:SK
