Karnataka High Court
Smt.Kamalabai W/O Ravikant Patil vs Bhimanna And Ors on 5 September, 2024
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NC: 2024:KHC-K:6719
MSA No. 200140 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCL SECOND APPEAL NO. 200140 OF 2019 (RO)
BETWEEN:
SMT. KAMALABAI W/O RAVIKANT PATIL,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. HIRE-BEVANUR, TQ. INDI, DIST. VIJAYAPURA.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. BHIMANNA
S/O RAMAGONDAPPA SONAKANAHALLI,
AGE: MAJOR, OCC: AGRICULTURE,
Digitally signed R/O. HIRE-BEVANUR, TQ. INDI,
by RENUKA DIST. VIJAYAPURA.
Location: HIGH
COURT OF
KARNATAKA 2. RAVIKANT S/O SIDDANAGOUDA PATIL,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. HIRE-BEVANUR, TQ. INDI,
DIST. VIJAYAPURA.
3. KHOBANNA S/O SIDDANAGOUDA PATIL,
AGE: 56 YEARS, OCC: PROFESSOR,
R/O. HIRE-BEVANUR, TQ. INDI,
DIST. VIJAYAPURA.
4. SHANTAPPA S/O SIDDANAGOUDA PATIL,
AGE: 63 YEARS, OCC: AGRICULTURE,
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NC: 2024:KHC-K:6719
MSA No. 200140 of 2019
R/O. HIRE-BEVANUR, TQ. INDI,
DIST. VIJAYAPURA.
5. GURUSIDDAWWA W/O LATE SIDDANAGOUDA PATIL,
SINCE DECEASED ON 05.09.2017 HER LRS
ARE ALREADY ON RECORD AS
RESPONDENT NO 2 TO 4 HEREIN.
...RESPONDENTS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE FOR R1;
R2 TO R4 ARE SERVED;
V/O DTD. 30.05.2024 R2 TO R4 ARE TREATED AS
LR'S OF R5 )
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
ORDER OF REMAND DATED 08.03.2019 PASSED BY THE III
ADDITIONAL DISTRICT JUDGE, VIJAYAPURA, IN RA
NO.196/2011, FILED BY THE APPELLANT HEREIN AGAINST THE
JUDGMENT AND DECREE DATED 23.11.2011 PASSED BY THE
SENIOR CIVIL JUDGE, INDI, IN OS.NO.253/2007, ALLOWING
THE SAID RA AND REMANDING THE MATTER TO THE TRIAL
COURT, AND FURTHER ALLOW THE SAID RA NO.196/2011
WITH COSTS THROUGHOUT. AND SUCH FURTHER OR OTHER
RELIEFS BE GRANTED TO WHICH THE APPELLANT WOULD BE
FOUND ENTITLED TO ON THE FACTS AND CIRCUMSTANCES OF
THE CASE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MSA No. 200140 of 2019
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the
appellant and learned counsel appearing for the
respondents.
2. The suit for specific performance filed to enforce
the agreement for sale in respect of immovable properties.
It appears that there was an objection relating to the
insufficient stamp duty on the agreement for sale.
3. The learned counsel appearing for the
defendant/appellant would submit that the stamp duty
was paid by the plaintiff and the document was impounded
judgment and the penalty was also paid. Then the suit is
decreed.
4. Defendant filed an appeal before the First
Appellate Court. It is the submission of the counsel for the
defendant/appellant that the First Appellate Court without
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noticing the fact that the stamp duty and penalty are paid,
remanded the matter to the Trial Court, directing the Trial
Court to impound the document and to collect requisite
stamp duty and penalty. The appeal is not decided on
merit. The entire judgment and decree of the Trial Court
are set aside with a direction to consider the case
operation on merit.
5. It is further submitted that the appellant has
produced the copies of the order sheet before this Court to
show that the requisite stamp duty and penalty are
collected by the Trial Court vide order dated 04.09.2010
passed on I.A No.VII. This court has perused the certified
copy of the said order sheet and it is noticed that such an
order is passed and the stamp duty and penalty are paid
on 31.01.2011.
6. Learned counsel for the respondent/plaintiff
would submit that the penalty and stamp duties indeed
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paid before the Trial Court and the First Appellate Court
did not notice the same.
7. It appears the First Appellate Court
inadvertently did not notice the payment made relating to
the stamp and penalty. Hence the judgment and decree
passed by the First Appellate Court are set aside and the
matter is remitted to the First Appellate Court to consider
the appeal on its merit in accordance with law. Hence, the
following.
ORDER
i. The appeal is allowed in part.
ii. The judgment and decree dated 08.03.2019 in RA
No.196/2011 on the file of the III Additional District
Judge, Vijayapura are set aside.
iii. The matter is remitted to the First Appellate Court to
hear the appeal on merits.
iv. It is made clear that this court has not expressed any
opinion on the merits of the first appeal.
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v. The appellant and respondent No.1 shall appear
before the First Appellate Court on 14.10.2024.
vi. The First Appellate Court shall issue notice to the
remaining parties to the suit.
vii. It is also noticed that respondent No.5 is dead and
respondents No.1 to 4 are treated as the legal
representatives of deceased respondent No.5. There
shall be corresponding correction in the cause-title of
the appeal memo in the First Appellate Court.
viii. Registry to send the records to the First Appellate
Court.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
