Karnataka High Court
Smt Sharada vs Rama Kottari on 24 June, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT _
DATED THIS THE 24?" DAY OF JuNvE,..9::e.:DfI f
BEFORE
THE HON'BLE MR. 3USTICE.4_A.N.DVV.E'l\iLJGO.P;l\{.Al:§iO\i;/DA f
MISCELLANEOUS SEC0VN'Dv'Ai?uPEAlL'!\lD'.21/2008
BETWEEN: it A Z
Smt. Sharada, V '
W/o. iVlonappa,K'ovttari;,' V ..
Major, R/0. l\'jl"ana»saV Ap--artr_Tient's,». "
Vidyaranapui*a4.m}».v-5:--_V
Mysore ---- 571--ii0D_1. " '
.... _ APPELLANT
(By Sri Vijai/'a51(r_iVs'hna«.Bha_t, Adv. for Sri Kukkaje
Rama¥<~rishna Bhajt',..4Adv}=)_ " __
AND:
Rama Khtrari, _____
D 2 S/cl". Th:;l=na~l§ottari,
' Ag'ed65 'years,--_
R/AD. 'Di.-.Al'e.V8-- 14.-«="1268,
(By S.ri"O:..Shivaram Bhat, Adv.)
Guri'iThota"..i§lce:Use,
Kudroli_,_v'Man'gaiore --- 575 003.
' RESPONDENT
..u5This MSA is filed under Order 43 Rule 1(u) of CPC
against the Judgment and Decree dated 2.11.2007 passed
.,..i.n RA,No.85/2007 on the file of the I Addi. Civii Budge
(SR.DN), Mangalore, aiiowing the appeal and setting aside
it the judgment and decree dated 21.04.2007 passed in
O.S.No.665/2003 on the file of the I Addi. Civil Judge
(3R.DN), Marigalore, D.i<., and remanding
the Trial Court under 0.41, R 23A of CPC.
This Appeal coming on fo__
Court delivered the following:
gupemewt'
Defendant is the .i§es'pon.di§ent filed
O.S.665/2003 againsvtlkthhe.gjpp§el:l.a'n:tW,'.C,i,is:the Court of Civil
Judge (Jr.Dn.v)'a't iYian-g'al'ore:,'to declare that,
the order lthallllist Additional Civil
HRC 259/1997 dated
7.4.2OV:0Q" has unexecutabie and
unenforceable"agVa'i_nsi;_sherV. The suit was resisted by filing
v _ theffirritten.__statern'e--r:t;'
V "tiara: Court framed 12 issues. For the plaintiff,
PW's;.1 to Biideposed. Exs.P1 to P10 were marked. The
fiiefendawnt deposed as DW.1 and Exs.D1 to [>40 were
i'Fi3"i'5(ed. Taking into consideration the rival contentions,
,t--:1:e Trial Court answered all the issues. issues 1, 4, 5 and
10 were answered in the affirmative, issues 2, 3, 6, 7, 8, 9
and 11 were answered in the negative and the suit was
i
d,/"
r.....h earl rig 9' 't'h*is;,» theft V'
dismissed with costs. Aggrieved, the plaintiff flied appeal
in the Court of Civil Judge (Sr.Dn.), at Mangaloree...VV_ii-,;7.o_
3. The first appellate Court upon hearing '
counsel for the parties and after perusal cf
the suit, raised the foliowing point:"srVfoi'f'_'
i) Whether the ACourt__1V-ha'sT""framed"V
appropriate issues""-with re'r'er_ence5 to the
pleadings"_.4_"'o.f .'_"bo§t'hl" parties before
commencement of'vevi'denlce_?.v'
ii) WVh4eth.er the'e'p~peI.l:airit:__pl-aiiifilrf proves that in
registered sale deed dated
registered settlement deed
,,,,ida'te.dV he has acquired the superior
V' right over» the suit schedule property and the
H'd~--ecrees passed in H.R.C. petition and Rent
vi§evii~sion Petition are legally inoperative, un-
. V "V'i:'1..e>}<:ecutab|e and unenforceable against him?
..ii"i).V ixwhether the impugned judgment and decree
it 'h passed by the "Trial }udge is required to be
interfered with?
iv) What order or decree?
4. By answering point No.1 in the negative, it held
that the Trial Court is required to consider the question of
law of merger of larger interest with smaller~«~~i~nt;e.res.i:tire,
regard to the merger of tenancy and owner.s_h'i'p-»..rig.ht of
plaintiff by virtue of acquiring rjnoo:l:i:,','ri;g'ht
"3
schedule property as per the,' registered doc'--um'ents'§'3
arriving at the said finding, 'tha:t*.Vi:t iséa fit case
to remit the suit to z'3AVlI)D|'0DFi<'it€
issues, considering i5yltiita:¢ ,gaanurr in regard
to the "o.E,:'.T(lecree, merger of
sub~tenani;y Vv'.iith'«V'r~,eference to title deeds of
the in accordance with law.
The apipeai impugned judgment/decree
of the _Trial {Nash set aside and the matter was
re'manL*lied"Vto thevlmlrial Court under 0.41 R.23--A CPC.
4th~e:'_ciefendant has filed this appeal.
z5'V..,VS'ri"'VVijaya Krishna Bhat, learned counsel appearing
foir-thevlllappellant would contend that, the Court below has
lfaliled to appreciate the fact that, the Trial Court has
it wframed issues elaborately and fresh issue in fact did not
arise at all as contemplated under 0.14 R.1 CPC and it has
I
; K
/7
committed an error and iilegality in remancling the
the Trial Court for disposal. Learned counsel' "
that, the first appeilate Court 'comr+_,3itt.eudfilhrelavch of if
provisions under Rs.24 and 25
judgment is unsustainable. A
6. Sri O.Shivaram_ Bhat," counsei appearing
for the respondent, V"c:o'nt_ended that, the
appellate C():,Li."'CL has feference to the
proceeding's'lt'ha.tf"haV've .piac:e:>'between the parties and
aiso to-,'theg' of the Karnata ka Rent Act,
1989 ("the_VAct'xV'for'i'sho:rt) and the decisions interpreting
the5pro'\x/'isions' o'f.th_eAct as weil as the effect of repeating
*t.he--.i_<'arn.atal_<_a Rent Control Act and has arrived at the
rig.h~t'conci'usi'oVn, According to the learned counsel, in the
facts and circumstances of the case, the appellate Court is
jiustifieds in passing the impugned judgment since there
is-gaslia materiai omission on the part of the Triaf Court while
wpassing the judgment and decree of dismissai of the suit.
Learned counsei made submissions in support of the
is
findings and conclusion of the Eeamed appe|late--<fJud'g_e"--in
the impugned judgment.
7. In view of the rival corl;tent_iAo'njs'anicl'the--..reAco.rd,'
which I have perused', the poaint fori'corisidera»t'i--oVnmist: ii
"Whether the ,.appellpa-tel."u~.C0urt ifiS'~...4ii_iSEtified in
remanding the "sL'i".t_1'.-t_oL :j_t'i'ie°*--.'lfriAa'll._Court to frame
appropriate issues Vanda d»ec:i'sionu.?__..
8. am_e.n;'d.me-ht1'V_'Act 104 of 1976, the
remarid apfipei:a:t'e:'_'VvCou_rtVVV'can be only in terms of
Rs.23 and '23~A The powers of the appellate
Court are as .'J.t0vicied"'-iinider S.107 CPC. Since the suit has
i"-been'. cl-.l'smVissed bvwanswering all the issues which were
-itriedl,' has no application. Since the suit has
been dV_i.spo'seid of otherwise than on a preliminary point,
R.23--Av._.of 0.41 could have been invoked, in case the
".,.d'eCr.ée is reversed in appeal and re--tria| is considered
_,_n§ecessary, in which case, the appellate Court shall have
the powers as it has under R.23. Before a remand is
ordered by having recourse to the said provision, the
«:4
appellate Court shall have to examine the appe'a.lVV'ni<_;e'eping
in view the provisions under Rs.24 and 25.
that, where the evidence upon the record'~is.fsufficient,,_to,
enable the appellate Court to :'»proncL7'nce,'1j~ud'gment,'<athe
appellate Court may, after resettlling
necessary, finally determine__tihe:'su_it, nloizvvitlhstanding that
the judgment of the Court 'Rom vvvvl'iofse"d,ecree the appeal is
preferred has-proceed*ed.jiwholylyu'pon"".so'me ground other
than tha.t,..c;.n Court proceeds. R.25
pr0v,iVdes'_Atl:lat, from whose decree the
appeal is"pre'ferre,d.lh'a..s:"'ornitted to frame or try any issue,
orfo dete"rmViAneh9any- question of fact, which appears to the
,qé'lDpe5l.liatel'..(;ourte'ssential to the right decision of the suit
.;;pVon.T't.hvevllrnejrits, the appellate Court may, if necessary,
lframe is_si'.iels, and send the same for trial to the Trial Court
1 with-ai' direction to take additional evidence required and
--..v"--su.i)mit the findings. When such an order is passed, it is
not open remand, which can take place by virtue of the
provisions under Rs.23 and 23--A. The order if passed
under 0.25 can only be termed as a lirr\i:ed remand for
M"
insufficient to finally determine the appeal.,,,VVs'».lSi_?le_re|y
because there is an omission on the part of
frame appropriate issues, the appel|ate_-~Coi.j':rt.could
have shirked its responsibility and reimandhetd"*the':s_uit;to
the Trial Court. Since it h»as.___power,_a'nd cr.blig_at,i,on to
settle the issues and answervléxthie same," itoughgt to have
examined the appeai---._._u:nde'r _25 of 0.41 CPC.
Since it is not a_ casewherein.a:.,,re':l:'rial'V'~'was ordered to be
held, the a'p;o;e|l:a't'e. Court,oug_ht:not"to"'have short circuited
the r,nattVe'r',"itvakenilrecourse R.23-A of 0.41 CPC and
remanded" Trial Court. The impugned
judg.ment4R"b_eing7' in Avpreach of said provisions, is
Agqsgustatinable. iviriméthe said view of the matter, it is
examined the findings recorded by the
I Court in its judgment.
V In the result, I pass the following;
ORDER
The appeal is allowed. The judgment under challenge stands set aside. Appeal stands restored to the k» F',/"
/, 10 appellate Court for disposal, keeping in view, the observations made supra in accordance with |aw.]'All the contentions of both the parties are kep.z.4'_;g~.p'enfor consideration by the Court below. The parties are directed appellate Court on 17.7.2>Oi0..V_andA""receiyea_oi5d'ers~. Since' the parties are litigating VAfor:""mo"re th'a"n~..,a decade, the appellate Court is directed utheappeal on priority basis and disp'os_e Q-_fV"th'e::sam.e--_e>tpe:di'tiousiy and at any event, ' in facts."-and circumstances of the case. The a'"re_directedAto bear their respective costs. A LCR to the first appellate Court. Sd/9 EUDGE Ed/Cw EUDGE Ksj/»