Karnataka High Court
Anil K Kembar vs K Pushparaj Shetty on 1 August, 2025
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2025:KHC:29897
RSA No. 1941 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 1941 OF 2021 (RES)
BETWEEN:
ANIL K. KEMBAR
S/O M. SRINIVASA SALIAN
AGED ABOUT 50 YEARS,
RESIDING AT FLAT NO.G-1
"PROVIDENCE BLISS",
ALAPE VILLAGE, PADIL,
MANGALURU - 575 007.
...APPELLANT
(BY SRI. SACHIN B.S, ADVOCATE)
AND:
K PUSHPARAJ SHETTY
S/O LATE K NARAYANA SHETTY
AGED ABOUT 49 YEARS
RESIDING AT SHETTY COMPOUND,
NEAR GARODDI, KANKANADY POST,
Digitally signed
by R MANGALURU - 575 002
MANJUNATHA ...RESPONDENT
Location: HIGH
COURT OF (BY SRI. UDAYA PRAKASH M, ADVOCATE)
KARNATAKA
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 22.03.2021 PASSED IN
RA NO.258/2019 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, AND CJM, MANGALURU D.K, DISMISSING THE
APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
DATED 13.11.2019 PASSED IN OS.NO.573/2017 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE, MANGALURU D.K.
-2-
NC: 2025:KHC:29897
RSA No. 1941 of 2021
HC-KAR
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, Sri.Sachin
B.S, learned counsel for the appellant during the course of
arguments has filed a memo. The said memo reads as
under:
"The counsel for the Appellant submits that
the claim of the Appellants may be Restricted to
the decree of the plaintiff's claim and not on the
counter claim of the Defendants. Hence, this memo
in the interest of jUstice and equity."
2. Sri Udaya Prakash M, learned counsel for the
respondent submits that if the appeal is restricted for
decreeing of the suit of the respondent giving up the
appeal for the counterclaim, suitable orders may be
passed.
3. In the present appeal, what is challenged is the
dismissal of the entire appeal filed by the appellant, who
was the defendant before the trial Court, who has suffered
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HC-KAR
a composite decree whereby the suit of the plaintiff, who
is the respondent before this Court and before the First
Appellate Court was decreed and the counterclaim filed by
the appellant, who was the defendant before the trial
Court came to be rejected.
4. Since the composite decree came to be passed,
it is the contention of the appellant that due to
inadvertence, a common appeal came to be filed and the
First Appellate Court was required to consider the appeal
either for decreeing of the suit or dismissal of the
counterclaim when the composite decree was passed and
without affording such an opportunity, dismissing the
entire appeal has resulted in miscarriage of justice.
5. Taking note of the fact that no such opportunity
was granted to the appellant to restrict the appeal for
either of the reliefs, namely challenging the decreeing of
the suit of the plaintiff or dismissing the counterclaim of
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HC-KAR
the defendant, the dismissal of whole appeal has rendered
as resulted in miscarriage of justice.
6. Hence, in view of the memo, without further
considering the merits of the matter on the substantial
questions of law, it is just and proper to set aside the
order of the First Appellate Court and remit the matter to
the First Appellate Court in restricting the appeal as to the
challenge with regard to the decreeing of the suit of the
plaintiff.
7. Accordingly, the following:
ORDER
i. Appeal is disposed of.
ii. Parties shall appear before the
First Appellate Court without
further notice on 29.08.2025.
Sd/-
(V SRISHANANDA)
JUDGE
CH
