Second appeal against remand in an easement suit over a road. The High Court upheld the First Appellate Court's remand, holding interim applications must be decided before conclusion of the main matter, and directed the trial court to decide the Commissioner application and conclude the suit by a fixed date.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:30739 MSA No. 44 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 44 OF 2023 (RO)
BETWEEN:
Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA
ALL ARE RESIDING AT NO.4-167, ADAM KUDRU, PERMANNUR POST, MANGALURU, D.K. DISTRICT - 575 017.
…APPELLANTS
(BY SRI. K. RAVISHANKAR, ADVOCATE)
AND:
MR. EDWARD D'SOUZA, S/O THOMAS D'SOUZA,
NC: 2024:KHC:30739 MSA No. 44 of 2023
AGED ABOUT 81 YEARS, R/AT NO. 4-165, ADAM KUDRU, PERMANNUR POST, MANGALURU, D.K. DISTRICT - 575 017.
…RESPONDENT
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)
THIS MSA IS FILED UNDER SECTION 43 RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.02.2023 PASSED IN RA NO.71/2021 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K. ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.03.2021 PASSED IN OS NO.156/2014 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND MANGALURU.DK., MATTER IS REMANDED BACK TO THE TRIAL COURT TO HEAR BOTH PARTIES ON THE APPLICATION FOR APPOINTMENT OF COURT COMMISSIONER.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.K.Ravishankar, learned counsel for the appellants and Sri.Cyril Prasad Pais, learned counsel for the respondent.
the order passed in RA No.71/2021 dated 10.02.2023 on the file of I Addl. Senior Civil Judge and CJM, Mangaluru, Dakshina Kannada whereby, the judgment passed in
NC: 2024:KHC:30739 MSA No. 44 of 2023
O.S.No.156/2014 dated 20.03.2021 on the file of I Addl. Civil Judge, Dakshina Kannada, came to be set aside and matter was remitted to the Trial Court for fresh disposal in accordance with law.
necessary for disposal of the appeal are as under:
3.1. A suit came to be filed in O.S.No.156/2014 by
the plaintiff with a prayer for declaration and prohibitory injunction on the ground of right of easement of necessity in respect of the road which is morefully described in the schedule to the plaint. Suit on contest came to be dismissed.
3.2. Unsuccessful plaintiff preferred an appeal before
the First Appellate Court on the ground that the learned Trial Judge did not consider the application filed by the plaintiff under Order XXVI Rule 9 of CPC for appointment of a Advocate Commissioner to find out the existence of
the road as is claimed in the suit schedule and alternate
NC: 2024:KHC:30739 MSA No. 44 of 2023
road pleaded by the defendants and the convenience there on.
3.3. Without deciding the said application before the conclusion of the trial, learned Trial Judge considered the said application along with the main suit and then recorded a finding that the plaintiff failed to prove the existence of the suit road and therefore, dismissed the suit as well as the application for appointment of Commissioner.
“ 23. I am of the opinion that, when the dispute relates to the accurate measurement of the "RRR" road, there is a need for appointment of commissioner and it will arise only after the parties have adduced evidence in regard to the matter in issue. The trial court ought to have appointed the commissioner for better appreciating the evidence on record. Undoubtedly, it is the discretionary power of the trial court to appoint the commissioner to discover the "RRR" road and its accurate measurement. But the discretionary power should be exercised judiciously. The Trial Court kept the interlocutory application pending and rendered
NC: 2024:KHC:30739 MSA No. 44 of 2023
Judgment. The order sheet of the trial court dated:15-03-2021 read as follows;
"Advocate for plaintiff filed an application for appointment of court commissioner. Heard the Advocate for plaintiff on reply. Call on for Judgment."
24. In the judgment it is observed by the trial court that, plaintiff did not make out a case for easement of necessity, therefore appointing the commissioner on I.A. will not arise. It seems that trial court is preconceived before judgment itself there exist no easement of necessity. It is completely arbitrary and the plaintiff is left with no option to challenge the decision of the trial court in this appeal. The discretionary province of the trial court has been hurried to record disposal of the case causing miscarriage of justice. In view of it, I answer point No.1 in the affirmative.”
5. Taking objections to the same, present appeal is filed by the defendant.
plaintiff is based on right of easement and plaintiff has perfected the right to use the road mentioned in the plaint
NC: 2024:KHC:30739 MSA No. 44 of 2023
schedule for a prescribed limit of time and therefore, action of the defendants in blocking the road so as to deny the right of ingress and egress to the property of the plaintiff is incorrect and sought for declaration.
NC: 2024:KHC:30739 MSA No. 44 of 2023
is to be decided before the conclusion of the main matter, is the dictum of this Court in the case of Veera Vahana Udyog Private Limited, Represented by its Managing Director V/s. The Karnataka State Road Transport Corporation, Represented by Managing Director and Others reported in ILR 2010 KAR 507 .
NC: 2024:KHC:30739 MSA No. 44 of 2023
ORDER
i. Appeal stands disposed of .
ii. While maintaining the remand order, parties are directed to be present before the Trial Court without further notice on 26.08.2024. Thereafter, learned Trial Judge shall consider the application for appointment of the Commissioner and hear the parties on merits and conclude the suit on or before 30.11.2024.
iii. Needless to emphasize, parties are directed to cooperate for the early disposal of the suit.
Sd/(V SRISHANANDA) JUDGE
KAV
List No.: 1 Sl No.: 42 CT: BHK
1 issue framed by the court
Whether the First Appellate Court was justified in setting aside the trial court decree and remanding for decision of the Order XXVI Rule 9 application before trial.
Colour shows how this judgement treated each authority
Veera Vahana Udyog Private Limited v. The Karnataka State Road Transport CorporationRelied on¶11
ILR 2010 KAR 507 · Who else cites this
2 provisions across 1 enactments
Mrs. Marceline D'Souza
Mr. Kishore D'Souza
Praveen D'Souza
Ms. Nisha D'Souza
Mr. Edward D'Souza
V Srishananda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
