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2023 DIGILAW 83 (KAR)

Prakash v. Poojya

2023-01-13

C.M.POONACHA

body2023
JUDGMENT/ORDER 1. The above Second Appeal is filed by the Defendant to set aside the Judgment and Decree dtd. 8/12/2017 passed in R.A. No.76/2014 by the Principal Senior Civil Judge, Kalaburagi and the Judgment and Decree dtd. 31/10/2014 passed in O.S. No.327/2009 by the V Addl. Civil Judge and JMFC., Gulbarga. 2. The Parties are referred to as per their ranking before the Trial Court for the sake of convenience. 3. The Plaintiff instituted a suit in O.S. No.327/2009 against the Defendant for mandatory injunction or in the alternative for possession. It is the case of the Plaintiff that he is the absolute owner and landlord in respect of an open space bearing CTS No.1432 measuring 41593.4 sq.meters and that his name is entered in the CTS record; that in the said Jatra Maidan, the plaintiff's father constructed over head water tank and there is electricity and water connection to the said tank; that the Jatra of Sri Sharanabasaveshwara Sadu Maharaj held in the month of March or April every year and the Defendant had taken the suit premises as a licencee for a period of three months on a licence fee of Rs.12,000.00 and that the Defendant paid Rs.8,000.00 on 14/4/2008 out of the said Rs.12,000.00; that the licence expired on 30/6/2008. However, the Defendant has not vacated the suit premises after expiry of the licence period. Hence, the Plaintiff issued a legal notice to the defendant on 22/10/2008 revoking the licence. Since the Defendant not vacated the suit premises, the Plaintiff filed the said suit. 4. The Defendant entered appearance in the said suit and filed his Written Statement inter alia, denying the case of the Plaintiff and contending that the suit premises is not an open space and that a shed is constructed in the said place; that the Plaintiff is not the owner of the suit premises and has no right to evict the Defendant; that the Defendant has not paid any money to the Plaintiff; it is denied that the licence period has expired on 30/6/2008; that the Defendant has duly replied to the legal notice vide his reply dated 01.012.2008, that the defendant and his family members are in possession of the suit property for more than 50 years on their own right. Hence, he seeks for dismissal of the suit. 5. The Trial Court upon the pleadings of the parties, framed seven issues. Hence, he seeks for dismissal of the suit. 5. The Trial Court upon the pleadings of the parties, framed seven issues. The power of attorney holder of the Plaintiff was examined as PW.1 and witnesses PWs.2 to 5 were examined. Exs.P1 to P39 were marked as exhibits. The Defendant examined himself as DW.1 and DWs.2 to 7 were examined as witnesses. Exs.D1 to D84 were marked as Exhibits. A Court witness was examined as CW.1 and Exs.C1 to C8 were marked as Exhibits. 6. The Trial Court vide its Judgment and Decree dtd. 31/10/2014 partly decreed the suit filed by the Plaintiff and directed the Defendant to vacate the suit property and deliver possession of the plaintiff within two months and further directed to pay Rs.34,000.00 to the Plaintiff for use and occupation of the suit premises. Being aggrieved, the Defendant preferred Regular Appeal No.76/2014. The Plaintiff entered appearance in the said Regular Appeal and contested the same. The First Appellate Court vide its judgment dtd. 8/12/2017, dismissed the said Appeal and confirmed the Judgment and Decree passed by the Trial Court in O.S. No.327/2009. Being aggrieved, the present Second Appeal is filed. 7. This Court vide order date 12/1/2023 has framed the following substantial question of law: "Whether the judgment and decree passed by the first appellate Court is liable to be set aside and the appeal can be remanded back to the first appellate Court only on the ground that not passing any order either allowing or rejecting the applications filed by the appellant under Order 41 Rule 27 of CPC and under Order 26 Rule 9 of CPC?" 8. It is contended by the learned counsel for the Appellant/defendant that; a) During pendency of the Appeal in R.A. No.76/2014 before the First Appellate Court, the defendant had filed two applications under Order 41 Rule 27 of r/w 151 of Code of Civil Procedure, 1908 ( for short 'CPC') and another application under Order 26 Rule 9 r/w Sec. 151 of CPC and the First Appellate Court without deciding the said applications has dismissed the Appeal vide its judgment dtd. 8/12/2017 which is liable to be interfered with; b) That the plaintiff is not the owner of the suit property as is forthcoming as per Ex.D2 which the First Appellate Court failed to take into consideration; c) That having regard to the fact that the Defendant denied the title of the Plaintiff, the plaintiff ought to have sought for declaration of title, in the absence of which the suit of the Plaintiff is liable to be dismissed. 9. In support of his contentions, learned counsel for the Defendant has relied on the following judgments: i) Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and others, (2007) 13 SCC 565 . ii) Sugappa and Ors. Vs. Shivashankerappa and Ors.,[RSA No.7209/2010 decided on 6/8/2015, High Court of Karnataka, Gulbarga Bench]. iii) Jatinder Singh and Anr. (Minor Through Mother) v. Mehar Singh and Ors Balbir Singh and Anr V. Jatinder Singh and Anr, AIR 2009 SC 354 . iv) Jairam S/o. Nathu Salunke Vs. State of Maharashtra and Another, (2017) 2 SCC 371 . v) Balamoni Kistanna and Others Vs. Narayana Reddy,1982 SCC OnLine AP 166. vi) Smt. P.N. Shylaja Vs. B. Vittala Shetty and others,RA 302/2011 DD 29/4/2015, High Court of Karnataka, Bengaluru. vii) Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. And Others, (2008) 4 SCC 594 . viii) Sopanrao and another Vs. Syed Mehmood and others, (2019) 7 SCC 76 . ix) Kishan Singh (Dead) through Lrs. Vs. Gurpal Singh and Others, (2010) 8 SCC 775 . x) Ojamma and Another Vs. Basavarajappa and Others, 2020 SCC OnLine Kar 2969. 10. Hence, he seeks for allowing of the above Appeal and granting of the reliefs sought for therein. 11. Syed Mehmood and others, (2019) 7 SCC 76 . ix) Kishan Singh (Dead) through Lrs. Vs. Gurpal Singh and Others, (2010) 8 SCC 775 . x) Ojamma and Another Vs. Basavarajappa and Others, 2020 SCC OnLine Kar 2969. 10. Hence, he seeks for allowing of the above Appeal and granting of the reliefs sought for therein. 11. Per contra, learned counsel for the Plaintiff vehemently contended that; a) That the Defendant is a mere licensee and is dragging on the proceedings in one pretext or the other by squatting on the suit property and the Appeal is liable to be dismissed in limine; b) That this Court is entitled to examine the documents that the Defendant sought to produce as an additional evidence vide his application filed under Order 41 Rule 27 of CPC before the First Appellate Court and the same being ex facie untenable, the Judgment of the First Appellate Court is not liable to be interfered with; (c) That the application filed by the Appellant under Order 26 Rule 9 of the CPC before the First Appellate Court is ex-facie untenable since there is no dispute as to the identity and location of the suit property and hence, the Judgment of the First Appellate Court is not liable to be interfered with; (d) That the Defendant is not a rival claimant to the title of the Plaintiff and hence, it is not open to the Defendant to deny the title of the Plaintiff and the Plaintiff need not seek for declaration of title. (e) The Defendant has not specifically pleaded as to who is the owner of the property and has merely denied the title of the Plaintiff without setting up title in any one else and hence, denial the title of the plaintiff is ex-facie is liable to be rejected and the same has been taken only to protract the proceedings; 12. In support of his contentions, learned counsel relied on the following judgment: i) Gurmail Singh and Others Vs. Rajinder Singh, AIR 2003 Punjab and Haryana 336. 13. I have considered the submissions made by the learned counsel for the Plaintiff and the Defendant and perused the material on record. 14. In support of his contentions, learned counsel relied on the following judgment: i) Gurmail Singh and Others Vs. Rajinder Singh, AIR 2003 Punjab and Haryana 336. 13. I have considered the submissions made by the learned counsel for the Plaintiff and the Defendant and perused the material on record. 14. Although various contentions have been putforth by both the learned counsel having regard to the substantial question of law framed for consideration in the above appeal, the same is required to be answered before dealing with the other contentions. 15. Having regard to the contentions of the Defendant that the applications filed by the Defendant before the First Appellate Court have not been decided, this Court vide order dtd. 10/4/2018 called for the records. 16. It is forthcoming from a perusal of the records of the First Appellate Court that the Appellant had filed an application on 27/6/2016 under Order 41 Rule 27 r/w 151 of CPC wherein he has produced the following documents: i) Certified copy of the Writ Petition No.201095/2016. ii) Certified copy of the order passed in W.P. No.201095/2016 dtd. 30/3/2016. iii) Representations to the Corporation dtd. 30/3/2016. 17. The Respondent/Plaintiff had also filed objections to the said application dtd. 27/6/2016. 18. The Defendant had filed application on 3/10/2016 under Order 41 Rule 27 r/w Sec. 151 of CPC wherein he has produced the following documents: i) Kranti Kannada Newspaper dtd. 17/8/2016. ii) Janakugu Kannada Daily Newspaper dtd. 18/8/2016. iii) Prajavani Kannada Daily dtd. 28/8/2016. 19. It is forthcoming that the Appellant has also filed an application on 8/3/2016 under Order 26 Rule 9 of CPC for Commissioner to be appointed to make local inspection of the suit property and to give a report as to whether it is an open space or whether there is a shed. 20. It is clear from the aforementioned that the Appellant had filed interim applications as noticed above. But the First Appellate Court had passed the Judgment dtd. 8/12/2017 without adjudicating the said applications. 21. Learned counsel for the Respondent submitted that the documents produced along with the applications under Order 41 Rule 27 of CPC is wholly unnecessary and the said applications are filed only to drag on the proceedings. He further submits that the newspaper articles produced would be of no relevance to the defence of the Defendant. 21. Learned counsel for the Respondent submitted that the documents produced along with the applications under Order 41 Rule 27 of CPC is wholly unnecessary and the said applications are filed only to drag on the proceedings. He further submits that the newspaper articles produced would be of no relevance to the defence of the Defendant. He further submits that the W.P. No.201095/2016 was filed by the Defendant without making the Plaintiff as a party and the order dtd. 30/3/2016 passed by this Court is only to consider the representations of the Petitioner. That the said representations dtd. 30/3/2016 are only for grant of licence and the said representations also have not been followed up by the Defendant by initiating any proceedings for non-consideration of the same, clearly shows that the intention of the Defendant is only to drag on the proceedings by attempting to place on record material which are wholly unnecessary for consideration of the questions that are required to be adjudicated. That in any event, the documents which are produced under Order 41 Rule 27 of CPC will not in any manner alter the finding recorded by the Trial Court while passing the Judgment and Decree. 22. Learned counsel for the Plaintiff further submits that the application under Order 26 Rule 9 is also ex facie untenable since there is no dispute as to the identity of the suit property. 23. Learned counsel for the Plaintiff in support of his contentions relies on a judgment of Coordinate Bench of the Punjab and Haryana High Court in the case of Gurmail Singh others (supra). However, the said judgment is not applicable to the facts of the present case as, in the said case, an application under Order 41 Rule 27 of the CPC was filed before the First Appellate Court, which was allowed on consent. The contentions put forth before the High Court in Second Appeal was that, having taken the documents on record pursuant to allowing of the said applications, the same were not considered by the First Appellate Court. 24. A Coordinate Bench of this Court in the case of Sugappa (supra) while relying on the Judgment of the Hon'ble Supreme Court in the case of Malayalam Plantations Limited Vs. State of Karnataka and Another, (2010) 13 SCC 487 . 24. A Coordinate Bench of this Court in the case of Sugappa (supra) while relying on the Judgment of the Hon'ble Supreme Court in the case of Malayalam Plantations Limited Vs. State of Karnataka and Another, (2010) 13 SCC 487 . with regard to the procedure to be followed whenever an application under Order 41 Rule 27 of the CPC has been filed, has held as follows: 2. Whenever an application is filed under Order 41, Rule 27 r/w Sec. 151 of CPC, it is incumbent upon the Court to hear arguments not only on the merits but also on the application filed under Order 41, Rule 27 r/w. Sec. 151 of CPC. If the appellate Court intends to dismiss the said applciation, it has to pronounce the Judgment on merits. If the appellate Court intends to allow the application, then it has to allow the application and permit the concerned parties to lead additional evidence and defer the decision on merits. (emphasis supplied) 25. A Coordinate Bench of this Court in the case of Ojamma (supra) after considering the various judgments of the Hon'ble Supreme Court with regard to the filing of an application under Order 41 Rule 27 of CPC has held as follows: 24. It is to be kept in mind that the First Appeal is a valuable right and the parties have a right to be heard both on question fact and law. Duty is cast on the First Appellate Court to deal with all the issues and evidence led by the parties and decide it by giving reason in support of its findings. 25. In view of the above it is needless to state that whenever an application for leading additional evidence under Order 41 Rule 27 of CPC is filed, the First Appellate Court may allow the application or it may dismiss the application. If the application is allowed then the Court has to follow further procedure as contemplated under Order 41 Rule 28 and 29 of CPC. If the application deserves to be dismissed then the Court may pronounce the judgment, but the Appellate Court has to decide the application for additional evidence at the time of disposing the appeal on merits. (emphasis supplied) 26. Having regard to the settled position of law as noticed above, it is just and expedient that the Judgment dtd. If the application deserves to be dismissed then the Court may pronounce the judgment, but the Appellate Court has to decide the application for additional evidence at the time of disposing the appeal on merits. (emphasis supplied) 26. Having regard to the settled position of law as noticed above, it is just and expedient that the Judgment dtd. 8/12/2017 be set aside and the matter remanded to the First Appellate Court for consideration of the interim applications filed by the Appellant and the Appeal as noticed above and to adjudicate upon the same in accordance with law. However, in view of the specific contention of the Plaintiff that the Defendant is dragging on the proceedings on one pretext or the other, it is just and necessary that the matter be remanded by imposing suitable directions. 27. In view of the aforementioned, I pass the following: ORDER (i) The above Appeal is partly allowed. (ii) The Judgment dtd. 8/12/2017 passed in R.A. No.76/2014 by the Principal Senior Civil Judge, Kalalburagi is set aside and the matter is remanded to the First Appellate Court to adjudicate upon the interim applications filed by the appellant-defendant in R.A. No.76/2014 while adjudicating upon the main appeal in accordance with law; (iii) Both the parties shall appear before the First Appellate Court on 30/1/2023 without the requirement of issuing any further notice in this regard; (iv) Upon both the parties entering appearance, the First Appellate Court shall adjudicate upon the matter in accordance with law as expeditiously as possible in any event within a period of 30 days from 30/1/2023. (v) Registry is directed to transmit the records to the First Appellate Court forthwith. (vi) All contentions of both the parties are kept open.