Karnataka High Court
Smt Sannamma vs Smt Jayasheelamma on 11 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:1595
MSA No. 11 of 2018
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS SECOND APPEAL NO.11 OF 2018 (RO)
BETWEEN:
1. SMT. SANNAMMA,
W/O LATE KULLALI KEMPEGOWDA,
AGED ABOUT 74 YEARS.
2. SHIVALINGAIAH,
S/O RAMANNA,
AGED ABOUT 74 YEARS.
3. K. S.KRISHNA,
S/O SANNE GOWDA,
MAJOR.
SANNEGOWDA,
S/O NINGEGOWDA,
Digitally signed by JAI DEAD BY LRS;
JYOTHI J
Location: HIGH
COURT OF
KARNATAKA 4 NINGAMMA,
W/O SANNEGOWDA,
AGED ABOUT 49 YEARS.
5. SATHEESH,
S/O SANNEGOWDA,
AGED ABOUT 37 YEARS.
6. PRAKASHA,
S/O SANNEGOWDA,
AGED ABOUT 32 YEARS.
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MSA No. 11 of 2018
APPELLANTS 1 TO 6
ARE R/O KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
7. PUSHPA ,
W/O RAMALINGEGOWDA,
D/O SANNEGOWDA,
AGED ABOUT 30 YEARS,
R/O CHIKKAMANDYA,
MANDYA TALUK,
MANDYA DISTRICT - 571 402.
CHIKKATHAMMAIAH,
S/O MURUKANA BOLEGOWDA,
DEAD BY LRS;
8. SMT. KEMPAMMA,
W/O CHIKKATHAMMAIAH,
AGED ABOUT 59 YEARS.
9. K. C. RAMESH
S/O CHIKKATHAMMAIAH
AGED ABOUT 39 YEARS
10. MANGALAMMA,
W/O LATE SANNEGOWDA,
D/O CHIKKATHAMMAIAH,
AGE MAJOR.
APPELLANTS 8 TO 10
ARE R/O KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
11. JAYARATHNA,
W/O KRISHNEGOWDA,
D/O CHIKKATHAMMAIAH,
AGE MAJOR,
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MSA No. 11 of 2018
R/O AMBARAHALLI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
12. JAYALAKSHMI ,
W/O CHIKKANNA,
D/O CHIKKATHAMMAIAH,
R/O NAGARAKERE VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
13. NAGARATHNA,
W/O RAJU,
D/O CHIKKATHAMMAIAH,
AGE MAJOR,
R/O HONNAYAKANAHALLI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
SMT. CHANNAMMA,
W/O HANNUREGOWDA ,
DEAD BY LRS.
14. HANUMEGOWDA,
S/O CHANNAKANAHALLI NINGAIAH,
AGE MAJOR.
15. MANGALAMMA ,
W/O LATE SANNEGOWDA,
D/O CHANNAKANAHALLI NINGAIAH,
AGE MAJOR.
16. ABHIJITH,
S/O LATE SANNEGOWDA,
AGED ABOUT 21 YEARS.
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MSA No. 11 of 2018
17. ANJALI,
D/O LATE SANNEGOWDA,
AGED ABOUT 20 YEARS.
18. ABHISHEK,
S/O LATE SANNEGOWDA,
AGED ABOUT 18 YEARS.
19. SMT DODDATHAYAMMA,
W/O SHIVALINGAIAH @ RAMANNA,
AGE MAJOR.
20. SMT.CHIKKOLAMMA,
W/O CHIKKAMOGA,
AGE MAJOR.
APPELLANT NO. 14 TO 20,
ARE R/AT KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
21. SMT. CHIKKATHAYAMMA
W/O KUNTAPPA @ DORE,
AGE MAJOR,
R/AT TURAGANUR VILLAGE,
BANNUR HOBLI,
T. NARSIPURA TALUK,
MYSORE DISTRICT - 571 137.
DODDAIAH,
S/O KARIGOWDA,
DEAD BY LRS.
22. D .JAYARAMU,
S/O SRI. DODAIAH,
AGED ABOUT 59 YEARS,
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MSA No. 11 of 2018
23. SMT. D.K. BHAGYA
D/O SRI DODDAIAH,
AGED ABOUT 54 YEARS.
24. SMT. D.K. INIDRA ,
D/O SRI DODDAIAH,
AGED ABOUT 46 YEARS.
25. SMT. D.K. RAJESHWARI ,
D/O SRI DODDAIAH,
AGED ABOUT 42 YEARS.
APPELLANT NO 22 TO 25 ARE
R/AT KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
26. K.N. GOWDA ,
S/O KEMPEGOWDA,
AGED ABOUT 64 YEARS.
K .SANNEGOWDA ,
S/O KEMPEGOWDA ,
SINCE DEAD REP BY LRS;
27. SMT. CHIKKATHAYAMMA,
W/O K SANNEGOWDA,
AGED ABOUT 49 YEARS
R/AT KURIKEMPANADODDI VILLAGE ,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
28. SMT. SHRUTHI
D/O K.SANNE GOWDA
W/O MANOJ,
AGED ABOUT 26 YEARS
R/AT ANNUR VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK
MANDYA DISTRICT - 571 422.
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MSA No. 11 of 2018
29. SMT MANJULA,
D/O LATE K. SANNEGOWDA,
W/O RAVI,
AGED ABOUT 24 YEARS,
R/AT KARADAKERE VILLAGE,
C.A. KERE HOBLI, MADDUR - 571 422.
30. MANJU,
S/O LATE K. SANNEGOWDA
W/O MANOJ,
AGED ABOUT 23 YEARS
R/O KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422
31. SMT. CHANNAMMA
@ BOOSANAMMA
AGED ABOUT 59 YEARS
32. SMT. SAVITHRAMMA
W/O N. NINGAIAH
AGED ABOUT 59 YEARS
BOTH ARE R/AT
KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
SMT HYPAMMA @ DEVAMMA
W/O HYPEGOWDA
SINCE DEAD REP BY LRS
33. SMT CHIKKAMARIYAMMA
W/O LATE KEMPEGOWDA
AGED ABOUT 64 YEARS
34. SMT. BHAGYA
D/O LATE KEMPEGOWDA,
W/O MAHADEVU,
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MSA No. 11 of 2018
AGED ABOUT 39 YEARS
BOTH ARE C/O JULEGOWDA,
R/O KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK, MANDYA DISTRICT - 571 422.
35. SMT. SUDHA
D/O LATE KEMPEGOWDA
W/O PRAKASH
AGED ABOUT 32 YEARS
R/AT C/O HUCHEGOWDA @ BUSIGOWDA
D.A. KERE VILLAGE,
MADDUR TALUK,
MANDYA DISTRICT - 571 422
36. SMT. GOWRAMMA
W/O LATE KEMPEGOWDA,
AGED ABOUT 54 YEARS,
37. SHANKARA
S/O LATE KEMPEGOWDA
AGED ABOUT 32 YEARS
38. NAGESHA
S/O LATE KEMPEGOWDA
AGED ABOUT 29 YEARS
APPELLANT NO 36 TO 39
ARE R/AT
ARKESHWARA HINDU MILITARY HOTEL,
NEAR 43-C, BUS STAND
BSK 3RD STAGE,
HOSA KERE KODI,
BENGALURU - 560 085.
39. NINGEGOWDA
@ THAMMEGOWDA
AGED ABOUT 64 YEARS
40. B. NINGEGOWDA
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MSA No. 11 of 2018
S/O BOREGOWDA
AGED ABOUT 64 YEARS
BOTH ARE
R/AT KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
...APPELLANTS
(BY SRI. SHARATH .S. GOWDA, ADVOCATE)
AND:
1. SMT. JAYASHEELAMMA
W/O LATE D NINGEGOWDA
AGED ABOUT 69 YEARS
2. D.N. NAGESHA
S/O LATE D NINGEGOWDA
AGED ABOUT 45 YEARS
3. D.N. KRISHNEGOWDA
S/O LATE D. NINGEGOWDA
AGED ABOUT 42 YEARS
4. D.N. NAVEENA
S/O LATE D NINGEGOWDA
AGED ABOUT 38 YEARS
RESPONDENT 1 TO 4 ARE
R/O DEVARAHALLI VILLAGE,
C. A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
5. SMT. NALINA
D/O LATE D.NINGEGOWDA
W/O MARIKENCHEGOWDA,
AGED ABOUT 54 YEARS
R/AT, MARASINGANAHALLI VILLAGE,
KOPPA HOBLI,
MADDUR TALUK,
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MSA No. 11 of 2018
MANDYA DISTRICT - 571 419.
6. SMT. SHYLAJA
D/O LATE D.NINGEGOWDA
W/O SHIVALINGEGOWDA
AGED ABOUT 52 YEARS,
R/O KURIKEMPANADODDI VILLAGE,
C.A. KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 422.
7. SMT. VEENA
D/O LATE D. NINGEGOWDA
W/O SHIVAKUMARASWAMY H.S,
AGED ABOUT 46 YEARS
R/AT HAGALAHALLI VILLAGE,
C.A. KERE HOBLI,
MADDUR TLAUK
MANDYA DISTRICT - 571 422.
8. ASSISTANT EXECUTIVE ENGINEER
MESCOM
MADDUR TALUK,
MANDYA DISTRICT - 571 428.
...RESPONDENTS
(BY SRI.K.M. SANATH KUMARA ADVOCATE FOR R1 TO R7;
R8- NOTICE SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) R/W
SEC.104 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 11.10.2017 PASSED IN RA.NO.7/2014 ON THE FILE OF
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 17.01.2014 PASSED IN
OS.NO.13/2004 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MADDUR, REMANDING BACK THE MATTER TO THE TRIAL
COURT WITH A DIRECTION.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MSA No. 11 of 2018
JUDGMENT
Miscellaneous second appeal is filed by the defendants praying to set aside the judgment and order dated 11.10.2017 passed by the II Addl. District & Sessions Judge, Mandya, in R.A.No.7/2014 by calling for records in the original suit and in a regular appeal.
2. Rank of the parties are stated as before trial court for easy reference and convenience.
3. The brief facts of the case are as under:
The plaintiffs have filed the suit for declaration, mandatory injunction and permanent injunction to declare that the plaintiffs are the absolute owners and are in possession of the suit schedule property and for mandatory injunction dismantling the borewells dug in the suit land and for consequential relief of permanent injunction. During the pendency of the suit the plaintiffs have filed an application under Order VI Rule 17 CPC seeking for amendment in the plaint and relief of possession. The said application was allowed and the
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NC: 2024:KHC:1595 MSA No. 11 of 2018 plaint got amended regarding relief of possession. The plaintiffs are claiming title over the suit schedule property by virtue of sale deeds and consequently revenue records prepared. The defendants have contested the suit by filing respective written statement. The trial court after full fledge trial has decreed the suit in part, declaring the plaintiffs as absolute owners of the suit schedule property, but suit of the plaintiffs in respect of relief of possession, mandatory injunction and consequential relief of permanent injunction, is dismissed on the ground that plaintiffs got amended the reliefs so far as possession is concerned, but not pleaded in the plaint regarding possession. Therefore, in the absence of pleadings in the plaint regarding possession, the trial court has decreed the suit only for declaration and dismissed the suit for possession, mandatory injunction and permanent injunction.
4. Being aggrieved by this, the plaintiffs have preferred the regular appeal before the first appellate
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NC: 2024:KHC:1595 MSA No. 11 of 2018 court on 24.02.2014. During the pendency of the appeal in the year 2017, the plaintiffs have filed applications namely I.A.No.11 under Order VI Rule 17 of CPC for amendment of the plaint and I.A.No.12 is filed under Order 41 Rule 27 of CPC for production of additional evidence. The defendants have also filed cross objection under Order 41 Rule 22 of CPC challenging the findings given so far as relief of declaration is given. The first appellate court has allowed the appeal filed by the plaintiffs thereby setting aside the judgment and decree passed in O.S.No.13/2004 impugned therein so far as dismissing the suit of the plaintiffs in respect of relief of possession, mandatory injunction and permanent injunction. Further, the first appellate court has allowed I.A.No.11 filed under Order VI Rule 17 CPC and I.A.No.12 filed under Order 41 Rule 27 CPC and permitted the plaintiffs to amend the plaint as prayed in I.A.No.11 before the trial court and also permitted to produce the additional evidence as prayed in I.A.No.12 before the trial court. Consequently, the matter is remanded to the trial court
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NC: 2024:KHC:1595 MSA No. 11 of 2018 with a direction to permit the plaintiffs to amend the plaint and to produce the documents.
5. Being aggrieved by this order of the first appellate court, the defendants have preferred the instant miscellaneous second appeal by invoking the provision under Order 43 Rule 1(u) r/w Section 104 of CPC. SUBMISSION OF APPELLANTS/ DEFENDANTS:
6. Learned counsel for the defendants/appellants has argued on following grounds:
6.1 The suit filed for mere declaration without seeking relief of possession is not maintainable as per Section 34 of Specific Relief Act, and also suit filed only for declaration, mandatory injunction and for permanent injunction, is not maintainable without seeking relief of possession with necessary pleadings. 6.2 The plaintiffs have got an opportunity when they have filed an application in the suit for
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NC: 2024:KHC:1595 MSA No. 11 of 2018 amendment under Order VI Rule 17 CPC to get the plaint amended for possessionary relief, but not claimed is amounting to waiver of right of seeking possession by the plaintiffs. 6.3 Before the first appellate court, the plaintiffs have not filed I.A.No.11 under Order VI Rule 17 CPC at the time of filing the appeal or soon after filing the appeal, but belatedly after three years from the institution of appeal I.A.No.11 under Order VI Rule 17 CPC is filed. Therefore, this is also amounting that the plaintiffs have not exercised their due diligence and it is amounting to waiver of seeking possessionary relief. But the first appellate court without having reasons has allowed the I.A.No.11 for amendment along with main appeal and then the appellants/defendants have lost an opportunity to challenge the order passed on I.A.No.11 for amendment before the Writ Court.
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NC: 2024:KHC:1595 MSA No. 11 of 2018 Therefore, submitted that first appellate court kept pending the appeal, considered I.A.No.11 filed for amendment. Therefore, challenged the judgment and order passed by the appellate court.
6.4 The first appellate court while allowing I.A.No.12 under Order 41 Rule 27 CPC for additional evidence, it ought to have directed the trial court to take additional evidence by keeping pending the instant appeal but has disposed of the appeal on merits and that is not permissible. Further, submitted that considering the additional evidence does not satisfy the ingredients enshrined under Order 41 Rule 27 CPC. Thus, by allowing the appeal and setting aside the dismissal of the suit for possession, mandatory injunction and permanent injunction, is not correct.
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NC: 2024:KHC:1595 MSA No. 11 of 2018 6.5 When the plaintiffs have filed the regular appeal before the first appellate court, the defendants have filed cross objection under Order 41 Rule 22 CPC and it is taken on record by the first appellate court as reflected in the order sheet, but, the first appellate court has erroneously observed that cross objection is not filed by the defendants, therefore, it is amounting to denying the right of parties to challenge the decree of declaration granted. Hence, submitted that when the appeal filed by the plaintiffs is considered, in the same way cross objection filed by the defendants ought to have been considered. Hence, submitted the impugned judgment and order is liable to be set aside.
7. Learned counsel for the appellants/defendants in support of his submissions, places reliance on the decisions of the Hon'ble Supreme Court and this Court:
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(i) (2012) 8 SCC 148: UNION OF INDIA v.
IBRAHIM UDDIN AND ANOTHER (Ibrahim Uddin Case)
(ii) (2008) 8 SCC 511: NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR v. BHAGWAN DAS (DEAD) BY LRS.
(Bhagwan Das Case)
(iii) ILR 2007 KAR 1127:
SHANTHAVEERAPPA v.
K.N.JANARDHANACHARI
(Shanthaveerappa Case)
(iv) (2009) 2 SCC 409: VIDYABAI AND
OTHERS v. PADMALATHA AND ANOTHER
(Vidyabai Case)
(v) CIVIL APPEAL No.9941/2016: MARY PUSHPAM v. TELVI CURUSUMARY & ORS.(Mary Pushpam Case)
(vi) AIR 2023 SC (CIVIL) 2087: DHEERAJ SINGH v. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY AND OTHERS (Dheeraj Singh Case) SUBMISSION OF RESPONDENTS/PLAINTIFFS:
8. On other hand, learned counsel for the respondents/plaintiffs submitted that first appellate court
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NC: 2024:KHC:1595 MSA No. 11 of 2018 has rightly considered the case and in a well merited judgment and order, rightly remanded the matter to the trial court for fresh consideration by allowing I.A.No.11 for amendment and I.A.No.12 for additional evidence, which needs no interference. Further, submitted that when the plaintiffs have sought for amendment in the suit for relief of possession i.e., based on the Court Commissioner's Report that the defendants are in possession of the suit property and relief claimed for mandatory injunction dismantling borewells dug on the suit land is amounting to pleading possession, but this is not considered by the trial court in true and correct perspective manner and that is well considered by the first appellate court by allowing I.A.Nos.11 and 12, therefore, justified the judgment and order of first appellate court.
8.1 Further learned counsel for the plaintiffs/respondents submitted that trial court already allowed the applications for amendment but even though construed that said amendment is only for seeking relief of
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NC: 2024:KHC:1595 MSA No. 11 of 2018 possession and only for complying the formalities of making amendment in the plaint for possession, the first appellate court in its discretion has rightly exercised in true perspective way and in judicious manner has allowed the amendment application i.e., I.A.No.11. Likewise, order passed by the first appellate court in allowing I.A.No.12 for additional evidence is for giving a substantial justice involved in the case which attracts Clause (a) and (b) of sub-rule (1) of Rule 27 of Order 41 of CPC. Therefore, first appellate court after satisfying with the additional evidence produced enable to pronounce the judgment on substantial cause. Therefore, justified the judgment and order passed by the first appellate court.
8.2 Further it is submitted that cross objection filed by the defendants in the appeal before the first
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NC: 2024:KHC:1595 MSA No. 11 of 2018 appellate court is considered while answering Points No.1 and 4 in the order impugned and after appreciation of evidence on record, held that the decree of the suit for declaration of relief is correct and legal. Therefore, submitted that even though the first appellate court in its impugned order at paragraph 28 observed that the defendants did not choose to prefer cross appeal challenging the judgment and decree of the trial court is only an inadvertent error, but, the first appellate court has considered the challenge made in the cross objection, so far as grant of declaratory relief is concerned by appreciating the evidence on record regarding grant of decree of declaration. Therefore, the grounds raised in the cross objection of the defendants are also considered and thus, the first appellate court has correctly remanded the matter so far as possessionary reliefs are concerned, alternatively, without prejudice to
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NC: 2024:KHC:1595 MSA No. 11 of 2018 the above contention it is submitted that the cross objection stated to have been filed by the defendants virtually is not amounting to cross objection challenging the findings of the trial court in the judgment and decree for the reason that it is filed as if an interlocutory application without payment of court fee on the cross objection and thus, the cross objection preferred is not at all cross objection. However, the first appellate court has considered the grievance of the defendants challenging the grant of decree of declaration upon reappreciation of evidence on record. Therefore, grievance of the defendants challenging the decree of declaratory relief is concerned, is substantially met with by the first appellate court. Therefore, justified the judgment and order passed by the first appellate court.
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NC: 2024:KHC:1595 MSA No. 11 of 2018 8.3 Further submitted that suit filed by the plaintiffs for declaration, mandatory injunction and for consequential permanent injunction, has got amended by seeking relief of possession and it is rightly allowed by the trial court and directed to amend the relief of possession. Thus, in this way suit is not hit by Section 34 of Specific Relief Act.
8.4 Further submitted that first appellate court has considered the facts and circumstances and the entire evidence on record and in substantial way so as to render justice to the parties in the lis having consciousness that whatever technicalities in law cannot defeat the justice on substantial cause. Therefore, justified the judgment and order passed by the first appellate court.
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9. Learned counsel for the respondents/plaintiffs in support of his submissions, places reliance on the decisions of the Hon'ble Supreme Court and this Court:
(i) AIR 1960 MAD. 236: GOVINDARAJA SETTY v.
K.L.PUTTASWAMAIAH & SONS
(ii) ILR 1999 KAR 222: DEMANAGOUDA &
ANOTHER v. SMT. RANAWWA & OTHERS
(iii) 2015 SCCR 568: MAHILA RAMKALI DEVI AND
OTHERS v. NANDRAM (D) THR. LRS AND
OTHERS
(iv) CIVIL APPEAL No.1323/2015: MOUNT MARY
ENTERPRISES v. M/S.JIVRATNA MEDI TREAT PVT. LTD.,
(v) HCR 2016 KANT. 39: PUTTAMARAMMA (SMT.) v. GIRIYAPPA AND OTHERS ANALYSIS:
10. Initially, the plaintiffs have filed the suit for declaration, mandatory injunction and permanent injunction, in respect of suit schedule property. The suit schedule property is certainly defined with boundaries so as to identify the property. For identifying the suit property there is no ambiguity found. The suit property is
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NC: 2024:KHC:1595 MSA No. 11 of 2018 described with its survey number, extent and boundaries, therefore, just because while filing the suit at first instance without seeking relief of possession cannot be thrown away just because relief of possession is not claimed, but during the midst of trial the Court Commissioner was appointed and Court Commissioner has submitted report that the defendants are in possession over the suit schedule property. Therefore, based on this plaintiffs have filed an application for amendment before the trial court and said application was allowed and plaintiffs got amended the prayer in the suit of relief of possession. Thus, as per Section 34 of Specific Relief Act both the reliefs seeking possession and declaration are met with. Hence, it cannot be said that suit is filed only for relief of declaration. Under these circumstances, having found the difference in the factual matrix, in view of law laid down in the case of UNION OF INDIA v. IBRAHIM UDDIN AND ANOTHER1 and in the case of TELVI CURUSUMARY & 1 (2012) 8 SCC 148
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NC: 2024:KHC:1595 MSA No. 11 of 2018 OTHERS2, the said citations are not applicable to the instant case.
11. The plaintiffs have sought for relief of not only declaration but for mandatory injunction of dismantling the borewells dug on the suit schedule property and consequential relief of for permanent injunction and later on getting the plaint amended regarding possession is concerned. Accordingly, it cannot be said that suit is filed only for declaration. Furthermore, it is pertinent to mention here that the application for amendment is allowed by the trial court for seeking possession. Therefore, on these facts and circumstances, being different with the facts and circumstances in the above cited cases, it can be said that the plaintiffs have satisfied the ingredients of Section 34 of the Specific Relief Act.
12. Thus, upon considering the contention raised by the appellants/defendants that their cross objection filed under Order 41 Rule 22 CPC is not considered, though at 2 CIVIL APPEAL No.9941/2016
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NC: 2024:KHC:1595 MSA No. 11 of 2018 paragraph 28 of the judgment of first appellate court it is observed that defendants have not filed cross appeal, but the order sheet maintained by the first appellate court discloses that the defendants have filed cross objection and this cross objection is filed to the effect that challenging the declaratory relief granted by the trial court. The first appellate court while answering Point Nos.1 and 4 on reappreciating the evidence on record whether the trial court is right and correct in granting the declaratory relief of decree and upon considering the documents on record, Exs.P-1 and P-2 observed that the plaintiffs are owners of the suit schedule property. The first appellate court has only considered documentary evidence but has not considered oral evidence and also the Court Commissioner's report. Even though the cross objection is filed in the form of interlocutory application, but provision is invoked under Order 41 Rule 22 CPC challenging the decree granted for declaratory, then the first appellate court ought to have considered both oral and documentary evidence so far as declaratory relief
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NC: 2024:KHC:1595 MSA No. 11 of 2018 granted upon considering the cross objection. Therefore, the case is needed remand to the trial court instead of first appellate court, since on I.A.Nos.11 and 12 the first appellate court has allowed the said applications and remanded the case to the trial court. Therefore, if on cross objection considering for declaratory relief remanding to the first appellate court and remand the case on I.A.Nos.11 and 12 to the trial court, creates two adjudications before two different Courts. Therefore, in order to avoid this, it is just and proper to remand the case to the trial court. Even on this declaratory relief to consider afresh by the trial court.
13. It is pertinent to mention here that though first appellate court has observed at paragraph 28 that cross appeal was not filed but where the cross objection filed in the form of interlocutory application before first appellate court, is considered by the first appellate court while dealing with the aspect of findings of the declaratory relief is granted, but the first appellate court and its registry
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NC: 2024:KHC:1595 MSA No. 11 of 2018 have committed error in not getting registered the cross objection by assigning the separate registration number without asking the necessary court fee, but the grounds raised in the said cross objection by the defendants are considered while considering Points No.1 and 4 by the first appellate court.
14. In the appeal preferred by either of parties, the other party made challenge to the findings of the trial court whichever are against that party by preferring cross objection as per Order 41 Rule 22 CPC and this cross objection shall be treated as if it is a cross appeal by the other side. Then there are two appeals, one by plaintiffs and other by defendants. Therefore, where the cross objection is filed in the appeal as per Order 41 Rule 22 CPC, the same shall be registered separately on the roll of appeal maintained as per the Karnataka Civil Rules of Practice, 1967 and assign a separate number and when it is having a characteristic of an independent appeal, then necessary court fee has to be calculated and paid on the
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NC: 2024:KHC:1595 MSA No. 11 of 2018 cross objection as if it is treated as a separate appeal. Therefore, the appellate courts in district judiciary are directed to whenever cross objection is filed under Order 41 Rule 22 CPC, it must be sought for in a regular format as applicable while preferring appeal under Section 96 of CPC and assign a separate number on its roll and calculate the necessary court fee to be paid on the cross objection and evaluate the court fee according to the relief claimed as per law and shall pay the court fee. Then the appellate court shall club this cross objection along with regular appeal and both shall have to be heard at once and give finding on the regular appeal and cross objection on merits.
15. Considering allowing of I.A.No.11 filed under Order VI Rule 17 CPC by the first appellate court, the plaintiffs have already sought for amendment in the prayer for seeking relief of possession and it was allowed by the trial court. Just because there is no pleading made in the plaint regarding possession, the relief of possession was
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NC: 2024:KHC:1595 MSA No. 11 of 2018 not granted by the trial court. Therefore, first appellate court considering this has rightly allowed the application I.A.No.11 under Order VI Rule 17 CPC directing to get amendment in the plaint so far as relief of pleadings of possession is concerned. Considering the submissions made by the learned counsel for the appellants/defendants that while allowing I.A.No.11 the appeal ought not to have been allowed, but, keeping pending the regular appeal, the trial court cannot proceed with the trial on the basis of the amendment made to the plaint for possession is concerned. Therefore, the first appellate court is justified in allowing the application I.A.No.11 under Order VI Rule 17 CPC for amendment and remanding the matter so that the trial court can proceed with the trial regarding possessory relief is concerned on merits after amendment in the plaint. Otherwise, it would amount to chaos if the appeal is pending and allowing the application for amendment in the plaint, then the trial court proceeding with the case for possession is concerned, is amounting to a chaos and cumbersome process. Therefore, the first
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NC: 2024:KHC:1595 MSA No. 11 of 2018 appellate court is correct in allowing I.A.No.11 for amendment and remanding the matter to the trial court for fresh consideration so far as the relief of possession is concerned and this cannot be found fault with. The first appellate court while dealing with the application filed under Order VI Rule 17 CPC for amendment has not touched upon the merits in the case as it is not warranted and so far as the pleadings regarding the possession is concerned, is left to the trial court and rightly remanded the matter to the trial court. Order VI Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings for achieving substantial justice. The principle of law laid down in paragraph 16 of BHAGWAN DAS's case is applicable to the present case, where the trial Court held that the plaintiffs are entitled to relief of declaration and amendment for seeking relief of possession is allowed and just because right of the plaintiffs regarding possession is not got amended. Therefore, the first appellate court in order to not to allow injustice and after being necessary for the purpose of
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NC: 2024:KHC:1595 MSA No. 11 of 2018 determining the real question in controversy to the parties, the first appellate court is justified in allowing I.A.No.11 and remanding the matter to the trial court. In BHAGWAN DAS's case it is held as follows:
"15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526 :
(1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits."
16. Therefore, the dispensation of justice must be real in the sense and shall not be mere paper decree. Therefore, the First Appellate Court while considering the appeal considered this aspect substantially.
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NC: 2024:KHC:1595 MSA No. 11 of 2018
17. Considering the application filed under Order 41 Rule 27 of CPC for production of additional evidence in the appeal, the principle of law governing on this provision as well as principle of law laid down by the Apex Court are considered, the first appellate court has considered the additional evidence which are necessary for coming to right conclusion, since I.A.No.11 is allowed for amendment in the plaint. Therefore, allowing the application I.A.No.12 for production of additional evidence cannot be found fault with. There are three ingredients while considering Order 41 Rule 27 of CPC. The Hon'ble Apex Court in IBRAHIM UDDIN's case at "36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used
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NC: 2024:KHC:1595 MSA No. 11 of 2018 sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526] , Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008], Soonda Ram v. Rameshwarlal [(1975) 3 SCC 698 : AIR 1975 SC 479] and Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC 601 : AIR 1979 SC 553] .)
38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. s(Vide Lala Pancham [AIR 1965 SC 1008])
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment."
18. The additional evidence sought to be produced are the RTC extracts which were not within the knowledge
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NC: 2024:KHC:1595 MSA No. 11 of 2018 of plaintiffs. When the plaintiffs proved their title and declaration granted in their favour is found to be justified and legal, then mere technicality aspect not getting the amendment of plaint cannot be made to deprive the justice. Therefore, Clause (b) of Sub-Rule (1) of Rule 27 of the Order 41 is applicable in the present case. Allowing I.A.No.12 under Order 41 Rule 27 of CPC enables the Court to pronounce the judgment on substantial cause by examining witnesses and upon considering the documentary evidence placed before the trial Court. If otherwise the amendment application and application for additional evidence are not allowed, then the decree of declaration is constrained to remain on the paper as a document without real fruitful yield to be given to the parties in the dispute. Therefore, in this context, Clause
(b) of Sub-Rule 1 of Rule 27 of Order 41 of CPC is applicable in the present case while considering and allowing the application for additional evidence. This exercise made by the appellate court is found while considering the appeal on its merits on final hearing and
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NC: 2024:KHC:1595 MSA No. 11 of 2018 accordingly, allowed the appeal along with the applications and the matter is remanded enabling the trial Court to consider the matter on its substantial issue. Therefore, for these reasons, the judgment and order passed by the Appellate Court cannot be interfered with.
19. For the above stated reasons, the judgment and order passed by the first appellate court is justified in remanding the matter along with allowing the applications as on 11.10.2017, cannot be interfered with.
20. The first appellate court regarding grant of declaratory relief is concerned, has not marshalled the oral evidence and only considered documentary evidence and has given finding on the declaratory relief. So far as declaratory relief is concerned, when cross objection is filed even though it is found to be having defective in nature and not registered separately and proper court fee is not paid, but anyhow the defendants have raised grounds challenging the grant of decree of declaration that ought to have been considered upon both oral and
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NC: 2024:KHC:1595 MSA No. 11 of 2018 documentary evidence and that is not done. But the first appellate court while remanding the matter has expressed the opinion on merits that cannot be permissible.
21. With these observations, the appeal is liable to be dismissed and accordingly dismissed. However, the trial court is directed to consider the suit in the light of observations made by the first appellate court as well as by this Court as discussed above. Hence, the appeal is disposed of.
22. The Registrar General is directed to circulate this order to all the Courts in the District Judiciary highlighting the observations made at para 14 of the judgment for necessary compliance in this regard.
23. Registry is directed to transmit the TCR along with copy of this order to the concerned Court forthwith.
Sd/-
JUDGE DR/List No.: 1 Sl No.: 29