Kariyanna vs Rudraiah

Ravi V. Malimath, J.—Aggrieved by the Judgment and Decree passed by the Fast Track Court by allowing the appeal by setting aside the Judgment and Decree passed by the Trial Court and in decreeing the suit of the plaintiff, the second respondent before the Fast Track Court has filed this appeal.

The parties would be referred to as per their rankings before the Trial Court.

The case of the plaintiff is that he is the owner of the suit schedule land and the khatha stands in his name. He is paying assessment of land revenue and he has been in possession of the same. The defendants, with an intention to knock of the suit schedule property attempted to disturb his possession. Hence, he filed the instant suit for decree of permanent injunction to restrain the defendants from interfering upon the suit schedule property and interfering with his peaceful possession over the same.

The defendants entered appearance and denied the suit averments.

Based on the pleadings, the Trial Court has framed the following issues for its consideration:

i) Whether the plaintiff proves lawful possession over the suit schedule property?

ii) Whether the plaintiff proves the alleged interference by the defendant?

iii) Whether the plaintiff entitled for the relief of permanent injunction?

iv) Whether suit is not maintainable?

v) Whether the defendant proves his title over the suit property?

vi) Whether the defendant proves his possession over the suit property?

vii) Whether the defendant is entitled for the relief of declaration of his title?

viii) Whether the defendant is entitled for the relief of permanent injunction?

ix) What Order or Decree?

In support of his case, the plaintiff got examined himself as PW-1 and got marked four documents. The Trial Court held all the issues in the ''negative'' and dismissed the suit. Aggrieved by the same, the plaintiff filed a first appeal before the District and Sessions Judge. During the pendency of the said appeal, the appellant herein filed an application under Order 1 Rule 10 read with Sec. 151 of CPC seeking to implead him, which was allowed. Thereafter, by the impugned judgment and decree, the First Appellate Court decreed the suit of the plaintiff by reversing the judgment and decree of the Trial Court. Hence, the present appeal.

By the order dated 28.05.2013, the appeal was admitted to consider the following substantial question of law:

"Whether the First Appellate Court is justified in holding that plaintiff has established his right of ownership on the basis of the revenue entries?"

Learned counsel for the appellant submits that based on the facts and circumstances involved the substantial question of law requires to be re-framed.

Heard the learned counsel for the appellant. Learned counsel for the respondents is absent.

The substantial question of law that arises for consideration in this appeal would be as follows:

"Whether the judgment and decree of the First Appellate Court is sustainable in decreeing the suit of the plaintiff by not considering the consequences of allowing an application under Order 1 rule 10 reading with Section 151 of C.P.C.?"

The appellant herein was not a party to the suit as well as before the First Appellate Court. He filed an application under Order 1 Rule 10 of CPC seeking to implead himself as a party before the First Appellate Court. The case made out by him that he having purchased the property on 29.12.2004 was a just and necessary party to the proceedings. That the suit was filed in the year 2000 and on the date of the decreetal of the suit, he had purchased the property. He has been deliberately left out as a party to the proceedings. On considering the plea of the appellant, the application was allowed. He was impleaded as the second respondent before the First Appellate Court. Consequently, he also filed an application in I.A. No. 4 under Order 41 Rule 1 of CPC seeking production of original documents as narrated therein, in order to establish that only he is the owner of the suit schedule property but also there is no cause of action against him. The First Appellate Court, on considering the same, was of the view that the appellant has not pleaded for remand of the matter. That there was no prayer to remand the matter for a fresh disposal and hence, the appeal was allowed and the suit of the plaintiff was decreed. Hence, he has filed this present appeal.

On hearing the learned counsel for the appellant, Tarn of the considered view that the reasons assigned by the First Appellate Court are unsustainable. The question of either of the parties seeking remand of the matter would not arise for consideration. It is the absolute discretion of the Court to decide whether the matter requires a fresh consideration by remand or not. It is on consideration of the legal right of the impleaded party that the Court would have to determine whether the appeal could be allowed or not or remanded in its best judgment. However, to hold that only because the impleaded party has not sought for any remand of the matter, the appeal requires to be allowed, therefore, is unsustainable. It is opposed to law. Whenever a party is impleaded, he must be granted an adequate opportunity to defend his case, The very purpose of impleading him is due to the reason that his non-impleadment will affect his legal right. Therefore, it is imminent that the impleaded party be granted an opportunity to make out his case. Therefore, the finding of the Appellate Court is incorrect and unsustainable in law.

For the aforesaid reasons, the substantial question of law is answered by holding that the First Appellate Court was not justified in decreeing the suit of the plaintiff by not considering the consequences of allowing an application under Order 1 Rule 10 read with Section 151 of CPC.

Consequently, the appeal is allowed. The judgment and decree dated 15.02.2010 passed by the Additional District and Sessions Judge, Presiding Officer, Fast Track Court Doddaballapura in R.A. No. 30/2006 is set aside.

The judgment and decree dated 20.03.2006 passed by the Additional Civil Judge (Jr. Dn.) and J.M.F.C., Doddaballapura in O.S. No. 278/2000 is also set aside.

The matter is remanded to the Trial Court for fresh disposal, in accordance with law, based on the observations made herein.

The Trial Court shall grant adequate opportunities to the appellant herein to file his written statement and thereafter dispose off the suit in accordance with law.

Parties to appear before the Trial Court on 16.02.2015.

In view of the long pendency of the dispute, the Trial Court shall make an endeavour to dispose of the suit by the end of December, 2015.