Remanded

Sri C B Muddukumar v. the Chief Secretary

Karnataka HC2 Dec 2024RSA/184/2022

Case brief

AI extract

What is this about?

Plaintiff's injunction suit was decreed by the trial court but dismissed in first appeal. The High Court held the appellate court erred in deciding the appeal without ruling on an Order 41 Rule 27 additional-evidence application, set aside the appellate judgment and restored the appeal for fresh decision.

What did the court decide?

Appeal allowed; impugned judgment in R.A.No.33/2020 set aside; appeal restored to the First Appellate Court to decide I.A.No.3 and the appeal afresh.

Sri C B Muddukumar Vs the Chief Secretary — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:49502 RSA No. 184 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 184 OF 2022 (INJ)

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BETWEEN:

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SRI C B MUDDUKUMAR S/O LATE BOREGOWDA AGED 48 YEARS, R/AT WARD NO.3, VIJAYANAGAR EXTENSION BEHIND HOSPITAL, K R NAGAR TOWN MYSURU DISTRICT - 571 602

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…APPELLANT

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(BY SRI. B S NAGARAJ & MALLAPPA NACHAVAR, ADVOCATES)

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AND:

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Digitally signed by B VEENA KUMARI

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Location: HIGH COURT OF KARNATAKA

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THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU - 560 001

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THE SUB DIVISIONAL OFFICER HUNSURU SUB DIVISION HUNSUR TALUK

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MYSURU DISTRICT - 571 105

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DISTRICT COMMISSIONER MYSURU DISTRICT MYSURU - 570 001

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THASILDAR

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K R NAGAR TALUK, K R NAGAR MYSURU DISTRICT - 571 602

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NC: 2024:KHC:49502 RSA No. 184 of 2022

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THE CHIEF OFFICER MUNICIPALITY K R NAGAR TOWN K R NAGAR MYSURU DISTRICT - 571 602

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…RESPONDENTS

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(BY SRI. B.J. SOMAYAJI, ADVOCATE FOR R5 R1, R3 ARE SERVED SRI. T.P. MALIPATIL, AGA FOR R2 & R4)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.09.2020 PASSED IN RA.No.33/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K R NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.03.2020 PASSED IN OS No.171/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, K R NAGARA.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This RSA is filed challenging the judgment and decree dated 08.09.2020 passed in RA.No.33/2020 by the Senior

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Civil Judge and JMFC, K.R.Nagara.

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For convenience, the parties are referred to, as per their ranking before the trial court. The appellant was the plaintiff, and the respondents were the defendants.

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NC: 2024:KHC:49502 RSA No. 184 of 2022

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed the suit against the defendant for permanent injunction. It is the plaintiff's case that, he is the absolute owner in possession of the suit schedule property. He purchased the property under a registered sale deed dated 04.12.2012 from Narayana Rao and his children. The suit property comes within the limits of municipality K.R.Nagara. The municipality, K.R.Nagara has not issued a demand and assessment register pertaining to the suit schedule property. Defendant No.5 has no right, title or interest over the suit schedule property. Hence, a cause of action arises for the plaintiff to file the suit for permanent injunction.

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The defendant, Nos.1 to 4 appeared through

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the Government Advocate but did not file a written statement. The defendant No.5 filed a written statement denying the averments made in the plaint. It is contended that, the plaintiff is not the absolute owner in possession

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NC: 2024:KHC:49502 RSA No. 184 of 2022

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of the suit schedule property. It is contended that defendant No.5 is in possession of the suit schedule property; defendant No.5 is using the drainage water, and they have installed the drainage pipeline of the suit property. Hence, pray to dismiss the suit.

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The trial Court based on the pleadings of the parties, framed the relevant issues.

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The plaintiff, to prove his case, examined

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himself as PW1, examined one witness as PW2 and marked 33 documents as Ex.P1 to Ex.P33. An official of the defendant No.5 was examined as DW1 and no documents were marked on behalf of the defendants. The trial Court, on the assessment of oral and documentary evidence, answered the issue Nos.1 to 3 in the affirmative and the issue No.4 as per the final order. The plaintiff's suit was decreed, restraining defendant No.5 and its officials from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.

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NC: 2024:KHC:49502 RSA No. 184 of 2022

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Defendant No.5, aggrieved by the judgment

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and decree passed in O.S.No.171/2017, preferred an appeal in R.A.No.33/2020. During the pendency of the appeal, defendant No.5 filed an application for the production of additional evidence. The first appellate court allowed the appeal, set aside the judgment and decree passed by the trial court, and consequently dismissed the suit filed by the plaintiff dated 08.09.2020. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.33/2020, preferred a Regular Second Appeal.

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Heard the learned counsel for the plaintiff and defendant No.5.

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The learned counsel for the plaintiff submits that, defendant No.5 filed an application for the production of additional evidence under Order 41 Rule 27 CPC before the first Appellate Court. The first Appellate Court, without passing any order on the said application, proceeded to allow the appeal. He submits that, the impugned judgment passed by the first Appellate Court is contrary to the law

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6 - NC: 2024:KHC:49502 RSA No. 184 of 2022

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laid down by this Court in the case of Ningappa vs. Shivappa and Others reported in 2015(1) KCCR 292. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for defendant No.5 supports the impugned judgment and prays for dismissal of the appeal.

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This Court admitted the appeal to consider the following substantial question of law :

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"Whether the First Appellate Court was justified in passing the impugned judgment without passing any order on the application for production of additional evidence filed by respondent No.5/defendant No.5."

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It is not in dispute that, the plaintiff filed the

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suit for permanent injunction claiming that the plaintiff is in peaceful possession of the suit schedule property. Defendant No.5 denied the ownership and possession of the plaintiff over the suit schedule property. The plaintiff examined himself as PW.1 and also examined one witness as PW.2 to establish his possession over the suit schedule property and produced documents exhibits P.1 to P.33.

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NC: 2024:KHC:49502 RSA No. 184 of 2022

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Defendant No.5 was examined as DW.1. The trial Court on assessment of oral and documentary evidence decreed the suit of the plaintiff with cost. Defendant No.5, aggrieved by the judgment passed by the trial Court, preferred an appeal in R.A.No.33/2020. During the pendency of the appeal, defendant No.5/respondent No.5 filed an application for the production of additional evidence on 3.1.2020, wherein the appellate Court has recorded an order which reads as under :

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"Sri KSD for appellant filed IA No.3 U/o 41 rule 27 of CPC in the counter of the Court and both the counsels submitted that, the IA may be considered along with the merits of the case. Hence, heard arguments of both the side. For judgment by 08/09/2020."

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The Appellate Court has not passed any order on the application filed by defendant No.5 for the production of additional evidence under Order 41 Rule 27 CPC. Without passing any order on the application – I.A.3, the First Appellate Court, has passed the impugned

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8 - NC: 2024:KHC:49502 RSA No. 184 of 2022

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judgment. The impugned judgment passed by the First Appellate Court is contrary to the law laid down by the Hon'ble Apex Court in JATINDER SINGH AND ANOTHER VS. MEHER SINGH AND OTHERS REPORTED IN 2008 AIR SCW 7392 (CIVIL APPEAL NO.5781/2008) wherein the Hon'ble Apex Court held that, the final decision of the Court without considering the application for production of additional evidence was improper, and the case was remitted. Considering the law laid down by the Hon'ble Apex Court as referred to above, the impugned judgment passed by the First Appellate Court is liable to be set aside.

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In view of the above discussion, the substantial

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question of law is answered in negative. Accordingly, I proceed to pass the following order :

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ORDER

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i) The appeal is allowed;

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NC: 2024:KHC:49502 RSA No. 184 of 2022

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ii) The impugned judgment dated 8.9.2020 passed in R.A.No.33/2020 by the learned Senior Civil Judge and JMFC, K.R.Nagar is set aside;

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iii) The appeal is restored;

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iv) The Appellate Court is directed to dispose of the appeal by passing an order on the application– I.A.3 and pass an appropriate order in accordance with the law. This Court directs the parties who represented before it shall beyond any obligation to appear before the First Appellate Court on 10.02.2025, and no further notice shall be served.

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v) It is made clear that all questions are kept open and will be decided by the First Appellate Court.

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The office is directed to transmit the trial Court records to the first Appellate Court.

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Sd/(ASHOK S.KINAGI) JUDGE

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RCK,RS

Sri C B Muddukumar v. the Chief Secretary

Case brief

What is this about?

What did the court decide?

Sri C B Muddukumar v. the Chief Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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