Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 562 (KAR)

K. R. Chandrashekharaiah v. Prakash

2013-04-25

S.N.Satyanarayana

body2013
JUDGMENT S.N. Satyanarayana, J. Respondent in RA.No.54/2011 on the file of Additional Senior Civil Judge, Chickmagalur, has come up in this miscellaneous second appeal impugning the judgment dated 5.1.2013 so far as it pertains to setting aside the judgment and decree passed in OS. No. 155/2007 on the file of Principal Civil Judge, Jr. Dn., Chickmagalur, and remanding the matter for fresh consideration based on the additional issue framed in the judgment impugned. 2. Brief facts leading to this second appeal are that defendants in original suit have filed RA.No.54/2011 impugning the judgment passed in original suit so far as it pertains to deciding the right of plaintiff in blocking the stream in respect of usage of water from the stream, which has taken its origin in the land of plaintiff and for usage of the same he has constructed a bund. It is seen that said suit was filed against the Secretary, Doddamagaravalli Grama Panchayath, President of said Gram Panchayath and its members, who have said to have demolished said bund to ensure free flow of stream water. Hence, said original suit was filed for the relief of permanent injunction restraining the defendants from trespassing in to suit schedule property and also in obstructing his right to use said stream exclusively for his benefit. In the said suit, after hearing the parties the trial Court decreed the suit by granting permanent injunction restraining the defendants from trespassing or damaging the bund and water tank, which was constructed to store the water generated from the stream and to stop free flow of same beyond said bund. 3. Being aggrieved by the same defendants have preferred RA.No.54/2011, wherein first appellate Court after hearing the parties felt that trial Court has not considered the application of provisions of Section 69(5) of Karnataka Irrigation Act, which specifically bar jurisdiction of Civil Court to entertain said suit and also observed that as per Section 2(h) of Karnataka Irrigation Act any channel or water stream is the property of the Government, unless there is any evidence to show that it is belonging to a particular individual and if there is a dispute regarding the usage of water in the channel, such dispute has to be decided by the Irrigation Officer and Civil Court has no jurisdiction to try said suit. In support of said observation it relied upon the judgment rendered by this Court reported in 2002(1) KCCR 180 in the matter of Shankaraiah & Anr., Vs. Smt. Savithramma. It also held that trial Court should have considered application of Section 295(2) of the Panchayath Raj Act and felt that without looking in to the same the finding arrived at by trial Court is erroneous. Accordingly, remanded the matter back to trial Court for fresh consideration to decide one of the issue that was framed by first appellate Court in the judgment impugned. 4. Being aggrieved by the same, respondent in RA.No.54/2011 who is plaintiff in original suit has come up in this miscellaneous second appeal contending that judgment impugned in setting aside the decree passed in original suit and remanding the matter is erroneous. So also in framing of an issue regarding maintainability of suit in the absence of any pleading before first appellate Court. 5. In this appeal when it has come up for admission this Court heard the Counsel for appellant Sri. Gangadharaiah. He vehemently argued that the finding of first appellate Court in holding that judgment passed by trial Court is required to be set aside and the matter is required to be remanded back to trial Court for reconsideration of the issue regarding maintainability not being part of pleading either by plaintiff or defendants, first appellate Court should not have suo motu framed the same and remanded the matter back to trial Court for fresh consideration. It is also contended that the scope of first appellate Court being unlimited, it should have decided the matter by itself in the Regular Appeal instead of remanding the matter back to trial Court. In that behalf, he relied upon the judgment rendered by this Court reported in ILR 2007 Kar 1127: (2007 (3) KCCR SN 159) in the matter of Shanthaveerappa Vs. K.N. Janardhanachari. 6. After hearing the Counsel for appellant and en going through the judgment impugned vis-a-vis judgment cited as above, it is clearly seen that under the relevant provisions of Order 41, Rule 23 of CPC the right of first appellate Court is unlimited. Nodoubt first appellate Court by itself can decide all these matters. K.N. Janardhanachari. 6. After hearing the Counsel for appellant and en going through the judgment impugned vis-a-vis judgment cited as above, it is clearly seen that under the relevant provisions of Order 41, Rule 23 of CPC the right of first appellate Court is unlimited. Nodoubt first appellate Court by itself can decide all these matters. However, if it feels that additional evidence is required to be led in by parties and issue regarding maintainability is to be decided based on facts and other relevant factors, it can remand the matter back for fresh consideration by trial Court on the limited aspect of maintainability for which an issue is framed by itself. 7. In fact, the judgment relied on by learned Counsel for appellant to substantiate his case supports the fact that first appellate Court in addition to reconsidering the matter in its entirety in appeal can also remand the same for retrial where first appellate Court considers this expedient to do so. In that view of matter, this Court feel that the finding of first appellate Court in remanding the matter back to trial Court for reconsideration on the issue framed by it would not amount to wrong exercise of its right to remand the matter as contemplated under Order 43, Rule 23 of CPC and the reason given for such remand in paragraphs 29 and 30 of judgment impugned appears to be reasonable and cogent in the facts and circumstances of the case. 8. On going through the judgment impugned this Court find that there is neither illegality nor irregularity in the finding of first appellate Court in remanding the matter back to trial Court for fresh consideration. In that view of matter, question of admitting this appeal to reconsider the same does not arise. 9. Accordingly, miscellaneous second appeal is dismissed. The judgment dated 5.1.2013 passed in RA.No.54/2011 on the file of Additional Senior Civil Judge, Chickinagalur in setting the judgment dated 4.6.2011 passed in OS.No.155/2007 on the file of Principal Civil Judge Chickmagalur and remanding the same for fresh consideration, is just and proper and the same is confirmed.