Karnataka High Court
Shri.Narayan vs Shri.Firdos on 4 January, 2017
Author: S.Sujatha
Bench: S.Sujatha
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
R.S.A. NO.100803/2016(POS)
BETWEEN:
SHRI.NARAYAN
S/O WAMANRAO SOMANACHE,
AGE: 74 YEARS,
OCC: BUSINESS,
R/O: ANGOL ROAD, ANGOL,
BELAGAVI-590001.
... APPELLANT
(BY SMT. P.G. NAIK, ADVOCATE)
AND:
1. SHRI.FIRDOS
S/O ABDUL-MAJID DARGA,
AGE 49 YEARS,
OCC: BUSINESS,
R/O: H.NO.730, 7TH CROSS,
SHRINAGAR, M.M. EXTENTION,
BELAGAVI-590001.
2. SHRI.SHAFI
S/O ABDUL MAJID DARGA,
AGE: 39 YEARS,
OCC: BUSINESS,
R/O: CTS NO.2517, MALI GALLI,
BELAGAVI-590001.
3. SHRI.ARSHAD AHMAD
S/O MOHAMMADSHAFI MOMIN,
AGE: 51 YEARS,
OCC: BUSINESS,
R/O: CTS NO.3189, MOMIN GALLI,
BELAGAVI-590001.
:2:
4. SHRI.NADIM AHMAD
S/O MOHAMMADSHAFI MOMIN,
AGE: 41 YEARS,
OCC: BUSINESS,
R/O: CTS NO.3189, MOMIN GALLI,
BELAGAVI-590001.
... RESPONDENTS
(BY SRI. M G NAGANURI, ADV. FOR C/R1)
THIS RSA FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD: 26.08.2016 PASSED IN
R.A.NO.392/2015 ON THE FILE OF THE XI ADDITIONAL
DISTRICT AND SESSIOINS JUDGE, BELAGAVI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DTD: 02.04.2012, PASSED IN O.S. NO.473/2009 ON
THE FILE OF THE IV-ADDITIONAL CIVIL JUDGE AND JMFC,
BELAGAVI, DECREEING THE SUIT FILED FOR POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant in OS No.473/2009 on the file of the IV Addl. Civil Judge & JMFC, Belgaum and the appellant in RA No.392/2015 on the file of the XI Addl. District and Sessions Judge, Belagavi, under Section 100 of CPC to set-aside the judgments and decrees passed therein.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. :3:
3. OS No.473/2009 was filed by the plaintiffs against the defendant for the relief of possession, costs and other reliefs. The subject matter of the suit property is part of CTS No.1933 measuring 15' East-West from point A to B, 15' North to South from point B to C, 4' East West from point C to D, 12' North South from point to D to E, 9' East West from point E to F, 29' North South from point A to F situated in Kadolkar Galli, Belgaum as described in the map annexed to the plaint.
4. The case of the plaintiffs is that CTS Nos.1933 and 1993/1 measuring 123.24 sq. metres built up portion and an area measuring 43.48 sq. meters open space in CTS No.1933/1, both situated at Kadolkar Galli, Belgaum was originally held by Sri. Venkatesh S/o Krishna Hebsur. It is the case of the plaintiffs that during the year 1969, the said Venkatesh Krishna Hebsur executed a Will dated 5/1/1969 in favour of Smt. Suvarna and his daughters from the second wife. He expired on 27.10.1969. Smt. Suvarna initiated the proceedings under Indian Succession Act in the Court of Civil Judge (Sr.Dn.), Dharwad and the :4: said proceedings was numbered as OS No.19/1972 which was contested by sons of Venkatesh Hebsur from his 1st wife i.e. Krishnamurthi and Trimbak. OS No.19/1972 was decreed granting probate of the Will in the name of Suvarna vide judgment dated 13.7.1973. Being aggrieved by the said judgment and decree, Krishnamurthi Venkatesh Hebsur preferred MFA No.345/1974 before this Court, and the same came to be dismissed on 27.1.1978. Smt. Suvarna executed a sale deed in favour of the plaintiffs on 24.06.2006 under the registered sale deed. Thus, by virtue of the said sale deed, the plaintiffs have become lawful owners of both CTS Nos.1933 and 1933/1, Kadolkar Galli, Belgaum. Thus, it is the case of the plaintiffs that they have become rightful owners of the suit property under the registered sale deed dated 24.06.2006. The plaintiffs contended that they have issued a notice dated 22.12.2008 to the defendant demanding possession of the suit property stating that his tenancy has been terminated and asked him to vacate the suit property and to hand over the vacant possession of the suit property to the plaintiffs, since the defendant claimed the possession :5: of the suit property as agreement holder of sale from Lakshmibai-1st wife of Venkatesh Krishna Hebsur. The plaintiffs further contended that the defendant denied the claim of the plaintiffs and refused to hand over the possession of the suit property. As such, they were constrained to file OS No.473/2009. On issuance of suit summons, the defendant contested the matter contending that the plaintiffs have no locus standi to issue notice and to file the present suit. The defendant has also denied the jural relationship between himself and present plaintiffs. On rival contentions of the parties, the Trial Court framed the following issues:
i) Whether the plaintiffs prove that they are absolute owners of the suit property, which is shown as ABCDEF in plaint map?
ii) Whether the plaintiffs are entitled the relief of possession of the suit property?
iii) What order or decree?
5. After appreciating the evidence on record, the Trial Court decreed the suit directing the defendant to hand :6: over the actual vacant possession of the suit property to the plaintiffs within 60 days from the date of the order. Being aggrieved by the said judgment and decree, the defendant preferred RA No.392/2015 before the Lower Appellate Court. In the said appeal proceedings, the appellant/defendant had filed interim applications. Though the lower appellate Court observed that the IAs were filed by the parties in the appeal proceedings, dismissed the appeal without disposing of the pending applications. Aggrieved by the said judgment and decree, the defendant is in second appeal.
6. Smt. P.G. Naik, learned counsel for the appellant/defendant assailing the impugned judgment and decree would contend that the judgment and decree passed by the Lower Appellate Court without passing any order or giving any finding on the pending applications filed in the said appeal is totally illegal and improper, which itself renders the judgment and decree perverse. On this very count, the impugned judgment and decree deserves to be set-aside. Learned counsel further submits :7: that the Trial Court failed to frame the material issues i.e. jural relationship, maintainability of the suit without seeking declaration, locus standi of the plaintiffs to file suit, pecuniary jurisdiction of the Court, valuation and court fee paid etc. Thus, learned counsel mainly contends that the judgment and decree passed by the Lower Appellate Court confirming the judgment and decree of the Trial Court requires to be set-aside and the matter be remanded to the Lower Appellate Court for fresh consideration.
7. Per contra, Sri. M.G. Naganuri, learned counsel for the plaintiffs/respondents supporting the impugned judgment and decree would contend that in the justice orientation process, the appeal cannot be entertained and allowed on technicalities. The paramount consideration would be to provide substantial justice ignoring hyper technicalities pointed out by the learned counsel appearing for the appellant/defendant. Learned counsel submits that no hardship or prejudice is caused to the defendant in not passing the orders on IAs. It is apparent that the said :8: applications were taken note of by the Lower Appellate Court while passing the final judgment. No legal flaw can be found in the impugned judgment and decree of the Lower Appellate Court.
8. Heard the learned counsel for the parties and perused the material on record.
9. In the circumstances, the following substantial question of law arises for consideration in this second appeal.
i) Whether the 1st appellate Court was justified in not considering the pending IA Nos.5 to 8 filed under Order 41 Rule 27 of CPC by the parties in the first appellate Court while passing the final judgment and decree?
10. The plaintiffs do not dispute the fact of IAs filed by the parties before the 1st appellate Court. A perusal of the judgment and decree passed by the 1st appellate Court on 26.8.2016 do not disclose that the said IAs having been considered and any finding recorded therein. No separate order passed on these applications is brought to the notice :9: of this Court. Thus, these IAs remain unconsidered. It is well settled legal position that all the applications filed under Order 41 Rule 27 of CPC require to be considered by the 1st appellate Court before disposing of the appeal or at the time of disposing of the main appeal. If the said exercise if not done by the Lower Appellate Court, the judgment and decree rendered by the said Court has to be construed as illegal or improper. In such circumstances, it is appropriate to remand the matter to the lower appellate Court to decide the appeal afresh on merits and in accordance with law along with IAs filed by the parties by setting aside the impugned judgment and decree. This view is supported by the judgment rendered by this Court in the case of Smt. Subadhramma Vs. Mullangi Narayanamma and Others, reported in 2016(3) KCCR 2445 and the judgment of the Hon'ble Apex Court in the case of H. Siddiqui(dead) by LRs. Vs. A Ramalingam reported in 2011 AIR SCW 1886.
11. For the foregoing reasons, the appeal is allowed. The judgment and decree dated 26.08.2016 passed in RA : 10 : No.392/2015 by the XI Addl. District and Sessions Judge, Belagavi is hereby set-aside. RA No.392/2015 is restored to file of the said Court for consideration and decision afresh along with all the pending applications. The said applications are to be re-considered keeping in view the law laid down by the Hon'ble Apex Court on the scope of the Order 41 Rule 27 of CPC, in the case of Union of India Vs. Ibrahim Uddin, (2012) 8 SCC 148. The substantial question of law answered accordingly.
12. The parties are directed to appear before the Lower Appellate Court on 16.01.2017 and receive further orders. The Lower Appellate Court shall dispose of the matter in accordance with law, after hearing the parties as expeditiously as possible.
In view of disposal of main appeal, all the pending applications are consigned to file.
Sd/-
JUDGE JTR