Allowed

Sri. S. v. Sridhara v Sri. S. v Srinath

Karnataka HC1 Oct 2024MSA/129/2018

Case brief

AI extract

What is this about?

The High Court allowed the second appeal filed by a plaintiff challenging a remittal order of the First Appellate Court. The superior court held that the First Appellate Court erred in law by remitting interim applications under Order XLI CPC to the Trial Court and by recording findings regarding rights in a separate pending suit, showing non-application of mind. The matter was remitted to the Fir

What did the court decide?

The impugned order of the First Appellate Court is set aside. The matter is remitted to the First Appellate Court for fresh disposal on merits within six months. Parties are directed to appear on 21.1

Sri. S. v. Sridhara Vs Sri. S. v. Srinath — Partition | Karnataka HC (2024)

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO.129 OF 2018(RO)

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BETWEEN:

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SRI. S. V. SRIDHARA AGED ABOUT 53 YEARS, S/O. S. VENKATACHALAPATHI, R/O. MARUTHI EXTENSION, MALUR TOWN, KOLAR DISTRICT-563 130.

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…APPELLANT

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(BY SRI. ABHINAV R, ADVOCATE)

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AND:

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SRI. S. V. SRINATH AGED ABOUT 45 YEARS, S/O. S. VENKATACHALAPATHI,

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SRI. S. V. VENKATACHALAPATHI AGED ABOUT 78 YEARS, S/O. SEENAPPA,

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SRI. S. V. SRIHARI AGED ABOUT 49 YEARS, S/O. S. VENKATACHALAPATHI, SINCE DEAD REPRESENTED BY LEGAL REPRESENTATIVES

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3(a) SMT.H.M.PARIMALA W/O LATE S.V.SRIHARI AGED ABOUT 41 YEARS

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3(b) KUMARI S. KRUPA D/O LATE S.V.SRIHARI

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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AGED ABOUT 15 YEARS

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3(c) KUMARI S. PREKSHA D/O LATE S.V.SRIHARI AGED ABOUT 12 YEARS

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LEGAL REPRESENTATIVES NO.3(b) and 3(c) ARE MINORS REPRESENTED BY ITS NATURAL GUARDIAN MOTHER SMT.PARIMALA

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ALL ARE RESIDING AT MARUTHI EXTENSION NEAR SAI BABA TEMPLE ARALERI ROAD MALUR TOWN KOLAR DISTRICT- 563 130

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SRI. H. G. VENKATA REDDY AGED ABOUT 55 YEARS, S/O. GULLA REDDY, R/O. H. HOSKOTE VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563 160.

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SRI. T. M. DEVARAJU AGED ABOUT 47 YEARS, S/O. MUNISIDDAPPA, R/O. TAGGALI HOSAHALLI VILLAGE, JADEGENAHALLI VILLAGE, HOSKOTE TALUK, BENGALURU RURAL DISTRICT-562 114.

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SRI. B. V. VEERABHADRAIAH AGED ABOUT 62 YEARS, S/O. DODDA VEERAIAH,

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SRI. B. V. SHIVARUDHRAIAH AGED ABOUT 47 YEARS, S/O. K.V. VEERABHADRAIAH,

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3 - NC: 2024:KHC:41042 MSA No. 129 of 2018

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RESPONDENTS 6 AND 7 ARE RESIDENTS OF BELLARI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT-563 130.

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SRI. GOPAL REDDY AGED ABOUT 62 YEARS, S/O. YALLA REDDY, RESIDENTS OF H. HOSKOTE VILLAGE, LAKKUR VILLAGE, MALUR TALUK, KOLAR DISTRICT-563 160.

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SMT. H. M. PRAMEELA AGED ABOUT 42 YEARS, R/O. OPP. TO AGRICULTURAL OFFICE, ARALERI MAIN ROAD LEFT SIDE, MARUTHI EXTENSION, MALUR TOWN, KOLAR DISTRICT-563 130.

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…RESPONDENTS

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[BY SRI N.V.VASANTH, ADVOCATE FOR R1; SRI VARUN .P, ADVOCATE FOR R2;

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SRI VINAYKUMAR.N.D, ADVOCATE FOR R8;

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R4, R5, R6, R7 AND R9 ARE SERVED BUT UNREPRESENTED;

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VIDE ORDER DATED 06.01.2023, SERVICE OF NOTICE TO R3(A) IS HELD SUFFICIENT;

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R3(B) AND R3(C) ARE MINORS REPRESENTED BY R3(A)]

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THIS MSA IS FILED UNDER ORDER XLIII RULE 1[U] OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 04.10.2018 PASSED IN RA NO.27/2016 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 08.01.2016 PASSED IN OS NO.14/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MALUR AND REMANDING BACK THE MATTER TO TRIAL COURT TO RETRIAL ALONG WITH THE INTERIM APPLICATIONS FILED ON

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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BEHALF OF THE APPELLANT/PLAINTIFF IN IA NO.3 TO 6 WITH DOCUMENTS.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard on the merits of the matter

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Though the matter is listed for admission, by consent of the parties, matter is taken up for final disposal.

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This second appeal is filed by the plaintiff in O.S.No.14/2012 challenging the order passed by the First Appellate Court in R.A.No.27/2016, whereby the appeal came to be allowed and matter is remitted to the Trial Court for fresh disposal in accordance with law.

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Facts in brief which are utmost necessary for disposal of the appeal are as under:

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A suit came to be filed in O.S.No.14/2012, seeking 1/3^rd share in the suit properties. Suit on contest came to be partly decreed. Questioning the validity of the partly decreeing the suit, plaintiff filed an appeal in R.A.No.27/2016. Learned Judge in the First Appellate Court instead of considering the appeal on merits, on flimsy grounds set aside the entire judgment of the

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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Trial Court and remitted the suit to the Trial Court for fresh disposal in accordance with law.

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The operative portion of the order of the First Appellate Court reads as under:

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“The Appeal filed by the appellant – plaintiff under Order 41 Rule 1 R/w Section 96 of Code Civil Procedure against the judgment and decree passed by learned Senior Civil Judge & JMFC., Malur in O.S.No.14/2012, dated 08.01.2016 is hereby allowed.

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The judgment and decree passed by the learned Senior Civil Judge & JMFC., Malur in O.S.No.14/2012, dated 08.01.2016 is hereby set aside.

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The matter is remanded to the trial Court under Order 41 Rule 23 (A) of Code of Civil Procedure for retrial along with the interim applications filed on behalf of the appellant/plaintiff in I.A.No.3 to 6 with documents.

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The trial Court shall give an opportunity to both the parties for production of documents and also to adduce further evidence if any and adjudicate the present suit along with O.S.No.79/2012 pending on its file, the next date of hearing of which case is on 22.10.2018.

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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Both the parties shall appear before the trial Court on 22.10.2018.

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The trial Judge is directed to dispose of both the suits within 6 months from the date of receipt of record of this case.

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Draw decree accordingly.

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Return the LCR to the trial Court along with a copy of this judgment to the trial Court.”

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It is that judgment which is under challenge by the plaintiff in this appeal.

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Sri Abhinav Ramanand, learned counsel for the appellant contended that the learned Judge in the First Appellate Court failed to understand the scope of the suit and the right that has been claimed by the plaintiff in the present suit and the right that has been claimed by the parties in O.S.No.79/2012.

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He also contended that the properties which are subject matter of the present suit are claimed through the father side as a coparcernery property, whereas subject matter of the suit in O.S.No.79/2012 is in respect of the properties which are left behind by the mother. Therefore, the order of

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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the First Appellate Court that the plaintiff can claim the rights in

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the pending suit in O.S.NO.79/2012 is per se incorrect and sought for setting aside the order of the First Appellate Court.

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The second ground on which the impugned order is assailed is that without deciding I.A.Nos.3 to 6 which were filed under Order XLI Rule 27, XLI Rule 25 and XLI Rule 23 the First Appellate Court directed that those I.As., are to be decided by the Trial Court.

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Admittedly, application filed under Order XLI Rule 27, XLI Rule 25 and XLI Rule 23 are the powers which are to

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be exercised by the First Appellate Court, not by the Trial Court. The said approach of the First Appellate Court shows non-application of mind and therefore, sought for allowing the appeal.

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Per contra, counsel for respondent while supporting the impugned order, vehemently contended that application under Order XLI Rule 27 should have been decided at the time of deciding the main appeal and other two applications ought to have been decided by the learned Judge in the First Appellate Court and remitting the matter to the Trial Court to be decided

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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on those applications has rendered is injustice and sought for passing suitable orders.

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Having heard the parties, this Court is of the considered opinion that the very approach of the learned Judge in the First Appellate Court in directing the Trial Court to consider I.As.3 to 6 itself shows that there is no application of judicious mind by the First Appellate Court.

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Further, the First Appellate Court also erred in recording a finding that in respect of the remaining properties which are subject matter in O.S.No.14/2012, the plaintiff can claim right in O.S.No.79/2012 is again an instance nonapplication of mind as the right of the plaintiff in both the suits are altogether different.

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Therefore, the impugned order is suffering from serious legal infirmities calling for interference by this Court by exercising the power under Order XLIII CPC.

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Hence, the following:

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ORDER

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Appeal is allowed.

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Impugned order is set aside.

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NC: 2024:KHC:41042 MSA No. 129 of 2018

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The matter is remitted to the First Appellate Court for fresh disposal in accordance with law.

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Parties shall appear before the First Appellate Court without further notice on 21^st October, 2024. Thereafter the learned Trial Judge in the First Appellate Court shall dispose of the appeal on merits after affording suitable opportunity for the parties on or before 31.03.2025.

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In view of disposal of the appeal on merits, pending applications, if any, are consigned to records.

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SD/(V SRISHANANDA) JUDGE

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List No.: 1 Sl No.: 49

Sri. S. v. Sridhara v Sri. S. v Srinath

Case brief

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Sri. S. v. Sridhara v Sri. S. v Srinath

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