Karnataka High Court
Basavarajappa vs Siddalingamma on 24 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 51 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.51 OF 2023 (RO)
BETWEEN:
1. BASAVARAJAPPA,
S/O LATE MADAPPA,
DEAD BY HIS LRS.
1(a) SMT.SHIVAMMA,
W/O LATE BASAVARAJAPPA,
AGED ABOUT 70 YEARS.
1(b) MAHADEVASWAMY,
S/O LATE BASAVARAJAPPA,
AGED ABOUT 45 YEARS.
BOTH ARE
R/AT KOODANAHALLI VILLAGE,
Digitally signed
by DEVIKA M SOMESHWARAPURA POST,
Location: HIGH VARUNA HOBLI, MYSURU TALUK,
COURT OF MYSURU DISTRICT-571 311.
KARNATAKA
(AMENDED VIDE ORDER DATED 24.10.2024)
2. CHINNAMMA,
W/O LATE VEERANNA,
AGED ABOUT 72 YEARS,
R/AT CHIKKAKANAGALA VILLAGE,
AALUR TALUK,
HASSAN DISTRICT-573213.
3. VEERABHADRA,
S/O LATE VEERANNA,
AGED ABOUT 50 YEARS,
R/AT CHIKKAKANAGALA VILLAGE,
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MSA No. 51 of 2023
HC-KAR
AALUR TALUK,
HASSAN DISTRICT-573213.
...APPELLANTS
(BY SRI. PULAKESHI A.P., ADVOCATE)
AND:
1. SIDDALINGAMMA,
W/O LATE MAHADEVAPPA,
AGED ABOUT 82 YEARS.
2. BASAVANNA,
S/O LATE MAHADEVAPPA,
AGED ABOUT 67 YEARS.
3. NAGARAJU,
S/O LATE MAHADEVAPPA,
AGED ABOUT 62 YEARS,
DEAD BY HIS LRS.
3(a) SMT.RAJAMMA,
W/O LATE NAGARAJU,
AGED ABOUT 52 YEARS.
3(b) MANJU K.N.,
S/O LATE NAGARAJU,
AGED ABOUT 32 YEARS.
3(c) CHANDRU K.N.,
S/O LATE NAGARAJU,
AGED ABOUT 29 YEARS
3(d) RANI,
D/O LATE NAGARAJU,
AGED ABOUT 26 YEARS.
ALL ARE R/AT KOODANAHALLI VILLAGE,
SOMESHWARAPURA POST,
VARUNA HOBLI, MYSURU TALUK
MYSURU DISTRICT-571 311.
(AMENDED VIDE ORDER DATED 05.09.2024)
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MSA No. 51 of 2023
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4. PUTTAMMA D/O LATE MAHADEVAPPA,
AGED ABOUT 52 YEARS.
5. RATHNAMMA D/O LATE MAHADEVAPPA,
AGED ABOUT 47 YEARS.
6. SHIVAMALLAPPA
S/O LATE MAHADEVAPPA,
AGED ABOUT 42 YEARS.
7. SIDDAPPA S/O LATE MAHADEVAPPA,
AGED ABOUT 40 YEARS.
8. SIDDARAJU,
S/O LATE MAHADEVAPPA,
AGED ABOUT 37 YEARS.
ALL ARE RESIDENTS OF
KOODANAHALLI VILLAGE
VARUNA HOBLI, MYSURU TALUK,
MYSURU DISTRICT-573 213.
...RESPONDENTS
(BY SRI. P. NATARAJU, ADVOCATE FOR R1, R2, R6 AND R7;
VIDE ORDER DATED 05.01.2024,
NOTICE TO R4 AND R8 HELD SUFFICIENT;
R4, R8, R5 - SERVED;
R3(a), R3(b), R3(c), R3(d) - SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) R/W
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 30.07.2022 PASSED IN R.A.NO.91/2020 (180/2019)
ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE
MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE
ORDER DATED 16.08.2019 PASSED IN O.S.NO.684/2009 ON
THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
MYSURU. THE SUIT IN O.S.NO.684/2009 IS RESTORED TO
THE FILE OF TRIAL COURT WITH DIRECTION TO EXPEDITE
THE SUIT AND DISPOSED OF THE SAME AS EARLY AS
POSSIBLE FROM THE STATE IN WHICH THE PLAINT IS
REJECTED.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants and the learned counsel for
respondent Nos.1, 2, 6 and 7.
2. The factual matrix of the case is that the plaintiff
filed a suit for the relief of declaration and permanent
injunction since he was unsuccessful in the earlier suit for
bare injunction and in the suit, an application is filed under
Order 7 Rule 11(d) read with Section 151 of CPC. The Trial
Court having considered the grounds urged in the application,
allowed the application and rejected the plaint, but no reasons
are assigned in the impugned order for invoking of Order 7
Rule 11(d) of CPC, except making an observation with regard
to the respondents herein were unsuccessful in
O.S.No.172/1987, R.A.No.407/2004 and R.S.A.No.1861/2006
and the said suit was filed only for the relief of bare injunction
and the said order was challenged in R.A.No.91/2020. The
First Appellate Court having considered the grounds urged in
the appeal and also the impugned order, in paragraph No.22
made an observation that the earlier suit was only for the
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relief of bare injunction and in respect of title, there were no
issues and issues were also not framed and any attainment of
finality with regard to title is concerned and the Trial Court
ignored the fact that the cause of action and the relief sought
for in the present suit is totally different from the previous
suit and the issue of title was not adjudicated. The First
Appellate Court also made an observation that the order
passed by the Trial Court is not a speaking order and hence
set aside the order and remitted back the matter to the Trial
Court to dispose of the same as early as possible from the
stage in which the plaint was rejected and directed the parties
to appear before the Trial Court on 30.08.2022.
3. The said order is challenged before this Court.
The main contention of the learned counsel for the appellants
is that the First Appellate Court has committed an error in
passing such a judgment. The First Appellate Court is not
justified in setting aside the order dated 16.08.2019 passed
by the Trial Court and hence this Court has to frame the
substantial question of law. It is also contended that the
plaintiffs' suit is barred by law of limitation.
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4. Per contra, the learned counsel for respondent
Nos.1, 2, 6 and 7 contend that the First Appellate Court
having considered the grounds urged in the appeal and as the
issue of title was not decided, remitted back the matter to the
Trial Court to consider the same on merits.
5. Having heard the learned counsel for the
appellants and the learned counsel for respondent Nos.1, 2, 6
and 7, it is not in dispute that the earlier suit was filed for the
relief of bare injunction and the same was dismissed on the
ground that there is a cloud on the title and the suit for bare
injunction is not maintainable. The same was challenged
before the First Appellate Court and this Court and the
judgment of the Trial Court was affirmed and hence a fresh
suit was filed for the relief of declaration and injunction. In
the said suit, I.A.No.6 was filed before the Trial Court invoking
Order 7 Rule 11(d) of CPC and the Trial Court having made an
observation referred above, allowed the application and
rejected the plaint and nothing is discussed with regard to the
provisions of Order 7 Rule 11(d) of CPC in the order having
gone through the said order. The said order was rightly set
aside by the Appellate Court considering the fact that the
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earlier suit is different from the subsequent suit and the
earlier suit was for the relief of bare injunction and the second
suit is for the relief of declaration and title has not been
adjudicated. The First Appellate Court also observed that the
Trial Court has not passed a speaking order. It is important
to note that this Court has also made an observation that
nothing is discussed in the order of the Trial Court while
allowing I.A.No.6 as to how Order 7 Rule 11(d) of CPC
applies. The First Appellate Court in paragraph No.22,
reconsidered the whole issue between the parties and set
aside the order of the Trial Court and remitted the matter to
the Trial Court. Having considered the reasons assigned by
the First Appellate Court, I do not find any error committed by
the First Appellate Court in setting aside the order of the Trial
Court, which is not a speaking order and nothing is discussed
about Order 7 Rule 11(d) of CPC.
6. The learned counsel for the appellants would
contend that the subsequent suit is barred by limitation. The
issue of limitation involves mixed question of fact and
question of law and the same has to be determined having
recorded the evidence before the Trial Court. Hence, I do not
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find any error committed by the First Appellate Court in
remanding the matter and the matter has to be considered on
merits including the issue of limitation as contended by the
learned counsel for the appellants. Hence, no merits in the
second appeal to admit the same.
7. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
