Karnataka High Court
G S Ashwathnarayana Rao Since Dead By Lrs ... vs Sri N Yogesh on 5 September, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:36381
MSA No. 4 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 4 OF 2023 (RO)
BETWEEN:
G S ASHWATHNARAYANA RAO,
SINCE DEAD BY LRS
1. SRI G A GURURAJA RAO,
S/O LATE G S ASHWATHNARAYANARAO,
AGED ABOUT 70 YEARS.
2. G A RAVEENDRA,
S/O LATE ASHWATHNARAYANARAO,
AGED ABOUT 68 YEARS,
3. G A SUBBARAO,
S/O LATE ASHWATHNARAYANARAO,
AGED ABOUT 63 YEARS,
APPELLANT NO.1 TO 3 ARE
RESIDING AT B BLOCK, MAIN ROAD,
GUDIBANGE TOWN, CHIKKABALAPURA-515271.
Digitally
signed by 4. G A USHADEVI,
PRAMILA G V
Location: D/O LATE ASHWATHNARAYANARAO,
HIGH COURT AGED ABOUT 62 YEARS,
OF RESIDING AT MATTIKERE,
KARNATAKA
BANGALORE-560054.
5. G A PRAMEELA,
D/O LATE ASHWATHNARAYANARAO,
AGED ABOUT 60 YEARS,
RESIDING AT KOTE, DEVANAHALLI TOWN
AND TALUK, PINCODE-562110.
...APPELLANTS
(BY SRI SHARATH S GOWDA, ADVOCATE (PH))
-2-
NC: 2024:KHC:36381
MSA No. 4 of 2023
AND:
1. SRI N YOGESH,
S/O V N NANJAPPA,
AGED ABOUT 39 YEARS.
2. SRI V N NANJAPPA,
S/O VANAKAYALA NARAYANAPPA,
AGED ABOUT 75 YEARS,
3. SMT ANNAPOORNAMMA,
W/O V N NANJAPPA,
AGED ABOUT 65 YEARS,
ALL ARE RESIDING AT B BLOCK,
KUMBARAPETE, GUDIBANGE TALUK,
CHIKKABALAPURA DISTRICT,
PIN CODE -515271.
...RESPONDENTS
(V/O/DT: 24.06.2021 NOTICE TO R1, R2 AND R3
ARE SERVED AND HELD SUFFICIENT)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 09.12.2022
PASSED IN RA.No.100/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AT GUDIBANDE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
25.04.2019 PASSED IN OS No.212/2012 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, GUDIBANDE PARTLY DECREEING THE
SUIT AND REMANDING BACK THE MATTER TO TRIAL COURT
FOR DIRECTING TO APPOINT COURT COMMISSIONER.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
-3-
NC: 2024:KHC:36381
MSA No. 4 of 2023
ORAL JUDGMENT
Heard Sri.Sharath S.Gowda, the learned counsel
appearing for the appellants. None appears for the
respondents.
2. Present Second Appeal is by the plaintiffs in
O.S.No.212/2012, challenging the order in R.A.No.100/2019,
whereby, the learned Judge in First Appellate Court set-aside
the judgment and decree in O.S.No.212/2012 and remitted
the matter to the Trial Court for the purpose of appointing a
Court Commissioner to conduct local investigation and report
thereof and to pass the judgment afresh in accordance with
law.
3. The facts in brief which are utmost necessary for
the disposal of the present Second appeal are as under:
A suit came to be filed by the appellants herein for the
relief of declaration, possession and damages in respect of
the following properties:
NC: 2024:KHC:36381
A - Suit Schedule Property
The town assessment No.515/405(2A) to an
extent ExW-24 feet, NxS-31 feet consisting house
and vacant site, situated at B block, 8th ward,
Gudibande Town and Taluk
B - Suit Schedule Property
The town assessment No.515/405(2A), to an
extent ExW-13 feet. MxS-10 feet consisting house
and vacant site situated at B block, 8th ward,
Gudibande Town and Taluk.
4. The suit on contest came to be decreed, against
which, the defendants filed an appeal before the First
Appellate Court in R.A.No.100/2019.
5. In the appeal, an application under Order XXVI
Rule 9 of Code of Civil Procedure (for short 'CPC') came to be
filed by the defendants for the local inspection and
measurements of the properties and report thereof.
6. The learned Judge in the First Appellate Court
without adverting to the merits of the case, allowed the
application and remitted the matter to the Trial Court for
NC: 2024:KHC:36381
fresh disposal in accordance with law. The said order is
under challenge in this appeal.
7. Learned counsel appearing for the appellants
reiterating the grounds urged in the appeal memorandum
vehemently contended that the approach of the First
Appellate Court in allowing the application and remitting the
matter to the Trial Court is against the scheme of Order XLI,
Rule 23 and 25 of CPC and sought for allowing the appeal.
8. Perused the records in the light of the arguments
advanced on behalf of the learned counsel for the appellants.
Learned counsel for the respondents though served,
unrepresented.
9. This Court finds sufficient force in the arguments
put forth on behalf of the appellants inasmuch as only for
the purpose of local investigation and report, the entire
judgment and decree passed by the Trial Court need not
have been set- aside.
NC: 2024:KHC:36381
10. The First Appellate Court had the mechanism of
recording additional evidence and therefore, should have
bestowed its attention to Order XLI Rule 25 of CPC and
appointed the Court Commissioner in the First Appellate
Court itself and report thereof could have been taken and
thereafter matter could have been disposed of on merits.
11. Even otherwise, the appeal could have been kept
pending and the Commissioner's report could have been
called for from the Trial Court and thereafter dispose of the
appeal on merits.
12. Instead of following any one of the aforesaid
procedures, learned Judge in the First Appellate Court,
mechanically set-aside the well-reasoned judgment of the
Trial Court only on the ground that the Commissioner needs
to be appointed and remitted the matter to the Trial Court
which is against the principles of law pronounced in various
judicial enunciated and up against circular issued by this
Court RJ No.102/2023, Dated: 14.08.2023.
NC: 2024:KHC:36381
13. Therefore, a case is made out for interference by
exercising the powers vested by this Court under Order XLIII
Rule 1A of CPC.
14. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The order of the First Appellate Court is set-
aside.
(iii) The matter is remitted to the First Appellate
Court for fresh disposal in accordance with
law after getting the Court Commissioner
appointed and report thereof.
Sd/-
(V SRISHANANDA)
JUDGE
GVP
