[Cites 2, Cited by 0]
Karnataka High Court
R Venkatesh S/O R Mallappa vs Hemavathi B W/O. M S Raghu on 6 April, 2026
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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MSA No. 100009 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 6TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
MISCELLANEOUS SECOND APPEAL NO.100009 OF 2022 (RO)
BETWEEN:
1. R VENKATESH S/O R MALLAPPA,
AGE. 59 YEARS, OCC. AGRICULTURE,
R/O.18TH WARD, COWL PETH, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
2. HANAMANTAMMA W/O LATE K. MALLAIAH,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O.SANKLAPUR VILLAGE, TQ. HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
3. MANJUNATHA S/O LATE K. MALLAIAH,
AGE. 41 YEARS, OCC. AGRICULTURE,
R/O. SANKLAPUR VILLAGE, TQ. HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
4. LEPAKSHI S/O LATE K. MALLAIAH,
AGE. 35 YEARS, OCC. AGRICULTURE,
CHANDRASHEKAR
R/O. SANKLAPUR VILLAGE, TQ. HOSAPETE,
LAXMAN
KATTIMANI DIST. VIJAYANAGAR - 583 201.
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2026.04.07 10:13:58
+0100
5. SRINIVASA S/O LATE K. MALLAIAH,
AGE. 32 YEARS, OCC. AGRICULTURE,
R/O. SANKLAPUR VILLAGE, TQ. HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
6. YARISWAMY S/O LATE K. MALLAIAH,
AGE. 29 YEARS, OCC. AGRICULTURE,
R/O.SANKLAPUR VILLAGE, TQ. HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
...APPELLANTS
(BY SRI ARUN L. NEELOPANT, ADVOCATE)
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MSA No. 100009 of 2022
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AND:
1. HEMAVATHI B W/O M S RAGHU,
AGE. 55 YEARS, OCC. AGRICULTURE,
R/O CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
2. S R SHOBHA D/O M.S. RAGHU,
AGE. 38 YEARS, OCC. HOUSEHOLD,
R/O.CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
3. S R LAKSHI D/O M.S. RAGHU,
AGE. 36 YEARS, OCC. HOUSEHOLD,
R/O.CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
4. SR USHA D/O M.S. RAGHU,
AGE. 35 YEARS, OCC. HOUSEHOLD,
R/O.CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
5. SARASWATI S R D/O M.S. RAGHU,
AGE. 35 YEARS, OCC. HOUSEHOLD,
R/O.CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
6. SREEDEVI D/O M.S. RAGHU,
AGE. 31 YEARS, OCC. HOUSEHOLD,
R/O.CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
7. S R SRINIVAS S/O M.S. RAGHU,
AGE. 29 YEARS, OCC. BUSINESS,
R/O.CHAPPARADHALLI, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
8. SMT.MEENAKSHAMMA
D/O N. HOSAGERAPPA,
AGE. 47 YEARS, OCC. AGRICULTURE,
R/O.SANKLAPUR, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
9. SRI RAMCHANDRA S/O N. HOSAGERAPPA,
AGE. 44 YEARS, OCC. AGRICULTURE,
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HC-KAR
R/O.SANKLAPUR, HOSAPETE,
DIST. VIJAYNAGAR - 583 201.
10. SRI MANJUNATHA S/O N. HOSAGERAPPA,
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O.SANKLAPUR, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
11. SRI YERRISWAMY S/O N. HOSAGERAPPA,
AGE. 35 YEARS, OCC. AGRICULTURE,
R/O.SANKLAPUR, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
12. SRI SHIVALINGAPPA S/O N. HOSAGERAPPA,
AGE. 50 YEARS, OCC. AGRICULTURE,
R/O.SANKLAPUR, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
13. LINGA REDDY S/O GURUSIDDAIAH,
AGE. 61 YEARS, OCC. BUSINESS,
R/O. C/O. BASALINGAPPA,
SIDDESHWARA GENERAL STORES,
NEAR RAMA TALKIES, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
14. PURUSHOTHAM S/O GURUSIDDAIAH,
AGE. 45 YEARS, OCC. BUSINESS,
R/O.C/O. BASALINGAPPA,
SIDDESHWARA GENERAL STORES,
NEAR RAMA TALKIES, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
15. GURULINGAPPA S/O GURUSIDDAIAH,
AGE. 51 YEARS, OCC. BUSINESS,
R/O.C/O. BASALINGAPPA,
SIDDESHWARA GENERAL STORES,
NEAR RAMA TALKIES, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
16. SREEDHAR S/O GURUSIDDAIAH,
AGE. 41 YEARS, OCC. BUSINESS,
R/O.C/O. BASALINGAPPA,
SIDDESHWARA GENERAL STORES,
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NEAR RAMA TALKIES, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
17. D. RAJA GOPAL REDDY S/O D. SUBBA REDDY,
AGE. 51 YEARS, OCC. BUSINESS,
R/O.OPP. TO ST. JOSEPH ENGLISH MEDIUM SCHOOL,
JAMBUNATHA ROAD, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
18. SAYED G KHADARVALI S/O SAYED BADAVALI,
AGE. 62 YEARS, OCC. BUSINESS,
R/O.9TH WARD, ANATHASAYANAGUDI,
PANDURANGA COLONY, HOSAPETE,
DIST. VIJAYANAGAR - 583 201.
...RESPONDENTS
(BY SRI VIJAYENDRA BHIMAKKANAVAR, ADVOCATE FOR R1 TO R7;
SRI HR DESHPANDE, ADVOCATE FOR R8 TO R12 & R18;
SRI ABHISHEK KALLED, ADVOCATE FOR R13 TO R16(ABSENT);
SRI KK TERAGUNTI, ADVOCATE FOR R17(ABSENT)
THIS MSA IS FILED UNDER SECTION 43 RULE 1 (U) OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN
R.A.NO.41/2019 DATED 22.10.2021 BY THE ADDITIONAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS HOSAPETE BY
ALLOWING THIS APPEAL BY CONFIRMING THE JUDGMENT AND
DECREE DATED 06.09.2019 PASSED IN O.S.NO.167/2018 (OS
NO.37/04, 69/05, 164/05, 275/14) PASSED BY THE PRINCIPAL CIVIL
JUDGE HOSAPETE, IN THE INTEREST OF JUSTICE.
THIS MSA COMING ON FOR FURTHER ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MSA No. 100009 of 2022
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 22.10.2021 passed
by Additional Senior Civil Judge and JMFC, Hosapete1, in RA
no.41/2019, this appeal is filed.
2. Sri Arun L. Neelopant, learned counsel for appellants
submitted that appellants were defendant no.6 and legal
representatives of defendant no.7 in OS no.37/2004 filed for
relief of specific performance of Agreement of Sale dated
23.09.1996. It was submitted that, OS no.37/2004 was initially
filed before Senior Civil Judge, Hosapete. During its pendency,
issues were framed on 02.09.2004. However, by order dated
18.02.2005, plaint was ordered to be returned for want of
jurisdiction to be represented before appropriate Court.
Thereafter, plaint was represented before Principal Civil Judge
and JMFC, Hosapete and renumbered as OS no.69/2005.
However, plaint was returned once again as per order dated
27.09.2007 and yet again as per order dated 02.02.2008 and
For short, 'Appellate Court'
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HC-KAR
renumbered as OS no.164/2009. Thereafter, it was transferred
and renumbered as OS no.275/2014 before Principal Senior Civil
Judge and JMFC, Hosapete. It was transferred again renumbered
as OS no.167/2018 on file of Principal District and Sessions
Judge, Hosapete2.
3. It was submitted, after representation, fresh issues
were framed on 03.09.2014 and additional issue framed on
30.03.2019 and matter was taken up for trial, after which trial
Court dismissed suit. Aggrieved, legal representatives of original
plaintiff filed RA no.41/2019.
4. Learned Appellate Judge disposed off appeal under
impugned order by setting aside judgment and decree passed by
Trial Court and remitting matter back to Trial Court for fresh
disposal. Only reason indicated is that trial Court had framed
issues on 02.09.2004 and without any explanation issues were
framed again on 03.09.2014 and there was no specific issue
framed about cancellation of Agreement of Sale by defendant
no.1 which was one of issues framed on 02.09.2004. Therefore
on ground of not giving finding on all issues and holding same as
For short, 'Trial Court'
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violation of Order XIV Rule 2 of Code of Civil Procedure,
Appellate Court remanded matter back to Trial Court.
5. It was submitted that issues framed prior to order of
representation of plaint would not survive and on representation
of plaint, proceedings would begin de novo before Court to which
plaint was represented. Therefore, Trial Court was justified in
framing issues once again and disposed off of suit by giving
finding on issues framed before it. On above grounds submitted
that there was no justifiable reasons for remand and seeks for
allowing appeal.
6. On other hand, Sri Vijayendra Bhimakkanavar,
learned counsel for respondents no.1 to 7 opposed appeal. Other
respondents being co-defendants choose to support appellant.
7. Learned counsel for plaintiff sought to justify order.
It was submitted that on coming to conclusion that an
appropriate issue was not framed, Appellate Court had remanded
matter to Trial Court and same would not call for interference.
8. Heard learned counsel for parties, perused impugned
judgment and decree.
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9. From above, only point that would arise for my
consideration is:
"Whether there was only justification for
first appellate Court to remand matter back to
trial Court for fresh disposal?"
10. At outset it is seen that, matter is lies within small
compass. There is no dispute about suit having been filed before
Court of Civil Judge (Sr.Dn.) and JMFC, Hosapete in OS
no.37/2004. There is also no dispute about plaint having been
returned by order dated 18.02.2005, after framing of issues on
02.09.2004. After representation, suit has met further transfers
and representations and ultimately while it was numbered as OS
no.275/2014, fresh issues were framed and parties lead trial.
Thereafter, it was transferred once again to Court of Principal
District and Sessions Judge, Hosapete and renumbered as OS
no.167/2018, which by recording findings on issues framed on
03.09.2014 and additional issues on 30.03.2019 disposed off
suit.
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11. Hon'ble Supreme Court in its decision in case of
ONGC Ltd., v. Modern Construction and Co.3, has held on
return of plaint for re-presentation before Court of competent
jurisdiction, plaint has to be treated as new plaint, even if trial
had concluded prior to return of plaint and suit had to begin de
novo.
12. In view of above, Trial Court was justified in framing
issues afresh and disposing of suit by recording findings thereon.
If Appellate Court was of view that any material issue that ought
to have been framed and parties had led evidence on such issue,
it could have framed such issue and recorded findings thereon.
Otherwise it ought to have framed additional issue and either
record evidence on it, itself or remit it to trial Court for needful.
Remand of entire suit would not be justified especially when
parties had proceeded with trial based on issues framed on
03.09.2014 and 30.03.2019.
13. In view of above, without any more, point for
consideration is answered in favour of appellant.
AIR 2014 SC 83
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14. Consequently, following:
ORDER
(i) Appeal is allowed. Judgment and decree
dated 22.10.2021 passed by Additional
Senior Civil Judge and JMFC, Hosapete, in
RA no.41/2019, is set aside and appeal is
restored to file.
(ii) Since parties are represented through their
counsel, are directed to appear before
Appellate Court without awaiting fresh
notice on 04.06.2026.
(iii) On said date, Appellate Court shall secure
records and thereafter proceed with matter
in accordance with law by giving
opportunity to parties.
It is clarified that observations made herein are to set right
irregularity in procedure, by following law laid down by Hon'ble
Supreme Court in case of ONGC Ltd. (supra) and Appellate
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Court would be at liberty to decide appeal afresh on merits
independently of observations but in accordance with law.
Sd/-
(RAVI V.HOSMANI)
JUDGE
SMM
CT:VP / LIST NO.: 1 SL NO.: 11
