C. Ramakrishnaiah vs KSRTC and The Assistant Director (Land Record) Department of Survey Settlement Ramanagaram The Karnataka State Road Transport Corporation Vs Ramakrishnaiah

Ram Mohan Reddy

Common question of law and that of fact arise for decision making. Hence with the consent of the learned Counsel for the parties, the appeals are clubbed together, finally heard and are disposed of by this order. Appellant in MSA No. 197/11 instituted O.S. No. 11/93 for declaration over the report filed in O.S.No. 134/91 and permanent injunction in respect of a certain immovable property arraigning the Karnataka State Road Transport Corporation as the 1st defendant and the Asst. Director of Land Records. Department of Survey Settlement, as the 2nd defendant. The suit when allowed by a judgment and decree of the Civil Judge (Jr.Dn.), Ramanagaram, the 1st defendant - KSRTC filed R.A.No.24/2003 which when allowed by judgment and decree dt. 10/2/2005 of the Add). Civil Judge (Sr.Dn.), Ramanagaram, was carried in RSA No. 425/05 by the plaintiff. This court, by order dt. 4/10/2010, allowed the appeal, set aside the order of the Lower Appellate Court and remitted the proceeding to the Lower Appellate Court with a direction to appoint a Court Commissioner to submit a report or the state of affairs i.e., whether the suit property is in fact outside the area covered under the notifications Ex.P13 and P14 or whether it would fall inside the property covered under the said notifications, and whether the suit property would fall within the confines of Sy.No. 19/2 and also permitted the plaintiff and the 1st respondent-KSRTC to file an application under Order XLI Rule 27 CPC, which the Lower Appellate Court was directed to consider.

The Lower Appellate Court, on remand, allowed the application under Order XLI Rule 27 filed by the 1st respondent - KSRTC while the appellant''s LA, under Order XLI Rule 27 CPC. since not filed before the Lower Appellate Court, was not considered. The said court having noticed that there was a need for a trial, by order dt. 27/7/2011, remanded the proceeding to the trial court for fresh disposal in accordance with law, while permitting the 1st respondent-KSRTC to lead evidence and the appellant to cross-examine the Commissioner on his report.

This order is challenged both by the appellant and the 1st respondent-KSRTC in these MSAs., while the plaintiff alleges that his application under Order XLI Rule 27 was not considered by the Lower Appellate Court, it is common ground of both the parties that there was no necessity for the Lower Appellate Court to remand the proceeding to the trial court for a fresh disposal in accordance with law, since it was open to the Lower Appellate Court to record evidence or direct the trial court to record evidence and forward the evidence to it for consideration.

Sri. Hegde Hudlamane, learned counsel for the plaintiff, submits that R.P.No.495/11 was filed in RSA No. 425/05 whence by order dt. 28/11/2011, the registry was directed to put up in MSA Nos. 197/11 and 277/11 the appellant''s application under Order XLI Rule 27 CPC for consideration by this court.

There is force in the submission of the learned Counsel for the parties that the Lower Appellate Court was not justified in remitting the proceeding to the trial court for a fresh enquiry since it was open for the Lower Appellate Court to either record evidence or direct the trial court to record the evidence of the witness for the parties, and thereafter to forward the said evidence for consideration by the Lower Appellate Court. In the light of Order XLI Rule 27 CPC, since the appellant and the respondent had filed their respective applications to produce additional evidence in the Appellate Court, the Lower Appellate Court having allowed the respondent''s application, ought to have recorded the evidence as there was no necessity for a re-trial, as contemplated by Order XLI Rule 23A.

In that view of the matter, the order of the Lower Appellate Court impugned herein, calls for interference. The appeals are allowed. The order dt. 27/7/2011 in R.A.No. 25/2003 of the Addl. Sr. Civil Judge, Ramanagaram, is set aside and the proceeding remitted to the Lower Appellate Court for a fresh consideration, after recording the evidence of the witness for 1st defendant, on the application under Order XLI Rule 27 CPC, and to take on record the application under Order XLI Rule 27 filed by the appellant and pass orders thereon in accordance with law and if allowed, to record the evidence of the witnesses for the plaintiff in accordance with Order XLI Rule 27 CPC. and pass orders in RA 25/03 in accordance with law.

Registry is directed to return the applications said to have been filed by the plaintiff under Order XLI Rule 27 CPC, in RSA No. 425/05, forthwith. Since parties are represented by learned Counsel, they are directed to be present before the Lower Appellate Coral on 31/1/2012 without further notice.