Defendants appealed against remand of a mandatory injunction suit concerning drainage and road works on the plaintiff's property. The High Court held Syeda Rahimunnisa inapplicable since pleadings existed and only boundaries were sought to be added by amendment. Appeal dismissed; remand order confirmed with time-bound disposal directions.
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NC: 2024:KHC:3589 MSA No. 6 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS SECOND APPEAL NO. 6 OF 2017 (RO)
BETWEEN:
…APPELLANTS
(BY SRI. NITHISH .N ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE)
AND:
Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA
NC: 2024:KHC:3589 MSA No. 6 of 2017
THIS MSA IS FILED UNDER ORDER 43 RULE (1)(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.11.2016 PASSED IN RA.NO.113/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MANGALURU, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.06.2013 PASSED IN OS.NO.74/2008 ON THE FILE OF THE PRL. CIVIL JUDGE, MANGALORE D.K., REMANDING BACK TO THE TRIAL COURT FOR FRESH ADJUDICATION OF THE SUIT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants calling in question the order dated 25.11.2016 passed in R.A.No.113/2013 by II Addl. Senior Civil Judge,
NC: 2024:KHC:3589 MSA No. 6 of 2017
Mangalore, Dakshina Kannada, (First Appellate Court) thereby remanding the matter to the Trial Court for fresh adjudication and consideration.
as before the Trial Court for convenience and easy reference.
suit for mandatory injunction praying to restore the suit schedule property to its original condition by removing drainage, water, electricity line and also to close the existing road. In the suit, the plaintiff has described the suit schedule property with survey number, village and extent, but has not mentioned the boundaries. On these reasons, the trial Court has dismissed the suit. Being aggrieved by that, the plaintiff has preferred the regular appeal before the First Appellate Court and filed I.A.1 under Order VI Rule 17 of CPC for amendment in the schedule property by mentioning the boundaries and
NC: 2024:KHC:3589 MSA No. 6 of 2017
I.A.No.2 under Order XXVI Rule 9 of CPC for appointment
of Court Commissioner. The First Appellate Court has allowed the appeal and remanded the matter to the trial Court with liberty to file applications for amendment and for appointment of Court Commissioner before the trial Court. This order of remand is challenged in the instant appeal.
4. Learned counsel for the appellants/ defendants
submitted that the First Appellate Court ought not to have remanded the matter by reserving liberty to the plaintiff to file such interlocutory applications as filed before the First Appellate Court and the said remand is beyond the scope of Order XLI Rule 23, Rule 23A and Rule 25 of CPC. He placed reliance on the judgment of the Hon’ble Supreme Court in the case of SYEDA RAHIMUNNISA VS. MALAN
BI (DEAD) BY LEGAL REPRESENTATIVES AND
NC: 2024:KHC:3589 MSA No. 6 of 2017
ANOTHER1 . Therefore, prays to set aside the order of remand passed by the First Appellate Court.
1 (2016) 10 SCC 315
boundaries of suit schedule property. Therefore, the trial Court has dismissed the suit, since the suit schedule property cannot be identified for grant of relief, since the boundaries are not mentioned. Thus, the trial Court has dismissed the suit.
NC: 2024:KHC:3589 MSA No. 6 of 2017
boundaries in the schedule property, but described the property. This makes difference in the cited case and in the present suit and all the necessary pleadings are in the plaint. Only for identification of property is concerned, I.A.No.1 is filed for amendment. Therefore, due to this differential factual matrix in the stated case and in the instant case, the above said ruling is not applicable in the present case and the appellants cannot take benefit of it.
the First Appellate Court has rightly remanded the suit to the trial Court for fresh adjudication. Therefore, this Court does not find any reason to cause interference with the order of remand. Thus, the appeal is liable to be dismissed.
Court on 28.02.2024 without expecting notice from the trial Court. The trial Court shall make every endeavour to dispose of the suit within a period of nine months from 28.02.2024. Both the parties shall co-operate for early disposal of the case. Accordingly, I proceed to pass the following
ORDER
ii. The impugned judgment and decree dated 25.11.2016 passed in R.A.No.113/2013 by II Addl. Senior Civil Judge, Mangalore, Dakshina Kannada, is hereby confirmed.
NC: 2024:KHC:3589 MSA No. 6 of 2017
Sd/JUDGE
PB
List No.: 1 Sl No.: 33
1 issue framed by the court
Whether the First Appellate Court could remand a suit under Order XLI Rules 23/23A/25 CPC while permitting the plaintiff to seek amendment of the property schedule and appointment of a Commissioner be
Colour shows how this judgement treated each authority
Syeda Rahimunnisa vs. Malan Bi (Dead) by Legal Representatives and AnotherDistinguished¶8
(2016) 10 SCC 315 · Who else cites this
4 provisions across 1 enactments
The Commissioner, City Corporation, Mangalore
The Executive Engineer, City Corporation, Mangalore
Sri B Suresh Rao (since deceased), represented by LR Smt. Sunitha Rao
The Deputy Commissioner, Dakshina Kannada
The Executive Engineer, KUDF, Kadri Old Market, Mangalore
The Commissioner, MUDA, Mangalore
Hanchate Sanjeevkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
