smt.subadhramma w/o.late Mullangi Doddalingappa Vs. Mullangi Narayanamma - Court Judgment

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1. : ® IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE9T H DAY OF JUNE, 2016 BEFORE THE HON’BLE MR.JUSTICE A.N.VENUGOPALA GOWDA REGULAR SECOND APPEAL NO.5670/2013 BETWEEN SMT.SUBADHRAMMA W/O.LATE MULLANGI DODDALINGAPPA, AGE:

68. YEARS, OCC: AGRICULTURIST, R/O. VENIVEERAPURA VILLAGE, TQ & DIST: BELALRY-583 102. (BY SRI.R.M.KULKARNI, & SMT. HEMALEKHA K.S., ADVS.) AND1 MULLANGI NARAYANAMMA W/O. LATE M.DODDABASAPPA, AGE:

74. YEARS, OCC: AGRICULTURE, R/O.VENIVEERAPURA VILLAGE, TQ & DIST: BELLARY-583 102. ... APPELLANT :

2. :

2. MULLANGI SATYANARAYANA S/O.LATE M.DODDABASAPPA, AGE:

47. YEARS, OCC: AGRICULTURE, R/O. VENIVEERAPURA VILLAGE, TQ & DIST: BELLARY-583 102.

3.

4. THE DEPUTY COMMISSIONER, BELLARY - 583 102. THE SPECIAL LAND ACQUISITION, OFFICER/A.C., KIADB LAKKAMMANNA HALI INDUSTRIAL AREA, P.B. ROAD, DHARWAD. PRESENTLY OFFICE AT BELLARY, A.C.OFFICE-583 102. (BY GODE NAGARAJ, ADV. FOR C/R1 & R2) ... RESPONDENTS THIS RSA FILED U/SEC. 100 OF CPC AGAINST THE JUDGMENT

AND DECREE DATED0807.2013 PASSED IN R.A. No.79/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AT BELLARY, DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT

AND DECREE DATED1809.2012 PASSED IN O.S.NO.226/2011 ON THE FILE OF THE I ADDL. CIVIL JUDGE BELLARY, PARTLY DECREEING THE SUIT FILED FOR THE DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:- :

3. : JUDGMENT

The defendant No.3 in O.S. 226/2011 on the file of the I Addl. Civil Judge, Bellary and the appellant in R.A.79/2012 on the file of the I Addl. Senior Civil Judge, Bellary, filed this second appeal under S.100 CPC to set aside the Judgments and Decrees passed therein. The suit, which was contested, was decreed in part with costs and the plaintiffs were declared as the joint owners of the suit schedule property and were held entitled to get compensation from defendant No.2. Assailing the decree passed by the Trial Court, an appeal under S.96 CPC was filed and was registered as R.A. No.79/2012 on the file of the I Addl. Senior Civil Judge, Bellary. I.A. No.VII was filed under Order XLI, Rule 27 CPC to receive additional evidence. Said application, by an order dated 18.03.2013 was ordered to be heard along with the main appeal. Assailing the said decree, this second appeal was filed.

2. The appeal was admitted on 02.04.2014, to consider the following substantial questions of law: :

4. : “ (i) Whether the First Appellate Court is justified in not considering the I.A. filed under Order 41 Rule 27 CPC by the appellant in the First Appellate Court?. (ii) Whether both the Courts have committed a serious error in ignoring the material evidence placed on record and thereby the Judgments have become perverse and illegal?. ” 3. Heard learned advocates on both sides and perused the record. It is unnecessary to consider the rival contentions and record findings since the appeal is liable to be allowed and the Judgment and Decree passed by the lower Appellate Court, impugned in this appeal, is liable to be set aside on a short ground by answering the substantial question of law at Serial No.(i) supra. Since the case is liable to be remanded for consideration afresh, it is unnecessary to consider the substantial question of law at serial No.(ii) supra.

4. Sri Harsh Desai, learned advocate appearing for respondents 1 and 2 i.e., the plaintiffs and learned HCGP appearing for respondents 3 and 4 i.e., the defendants 1 and 2 did not dispute the fact of defendant No.3 i.e., the appellant having filed I.A.VII under Order 41 Rule 27 CPC in R.A.79/2012. Undisputedly, said application :

5. : was ordered to be heard along with the main appeal. Perusal of the Judgment and Decree passed by the lower Appellate Court on 08.07.2013 does not show I.A. VII having been considered and any finding recorded thereon. There is no separate order passed on I.A. VII. Thus I.A.VII has remained unconsidered. In HAKAM SINGH Vs. STATE OF HARYANA, (2008) 12 SCC762 it was found that an application filed under Order 41 Rule 27 CPC for acceptance of additional evidence in the appeal had remained unconsidered by the Appellate Court while disposing of the appeal and hence it was held that the Appellate Court should decide the appeal afresh on merits and in accordance with law along with the application for additional evidence. By setting aside the impugned order, the case was remanded to the Appellate Court. The said decision squarely applies to the present case. Hence, the impugned Judgment and Decree passed by the lower Appellate Court being vitiated is unsustainable. In the result, the appeal is allowed and the Judgment and Decree dated 08.07.2013 passed in R.A. No.79/2012 :

6. : by the I Addl. Senior Civil Judge, Bellary is set aside. R.A. No.79/2012 is restored to the file of the I Addl. Senior Civil Judge, Bellary for consideration and decision afresh along with I.A. VII filed on 18.03.2013. The said application be considered by keeping in view the law laid down by the Apex Court on the scope of Order XLI, Rule 27 CPC in the case of UNION OF INDIA Vs. IBRAHIM UDDIN, (2012) 8 SCC148 The parties are directed to appear before the lower Appellate Court on 18.06.2016 and receive further orders. The interim order passed in this appeal on 16.09.2013 shall operate till 18.06.2016 and it is for the lower Appellate Court to consider the grant / extention or otherwise of the stay of execution of the impugned decree in the appeal. The appeal be decided with expedition and before 31.08.2016. The Registry is directed to send the LCRs to the Court of I Addl. Senior Civil Judge, Bellary forthwith. sac* JUD GE Sd/-