M. Kumar vs H. Gunasheela

C.R. Kumaraswamy, J.—The matter was heard for sometime. During the course of arguments, learned counsel for the appellant as well as learned counsel for respondent No. 1 submits that the matter may be remitted back to the Trial Court and the parties may be permitted to make an application for amendment of pleadings and adduce further evidence, if any. Their submission is placed on record.

Both sides relied on the decision in the case of Gurunath Manohar Pavaskar and Others Vs. Nagesh Siddappa Navalgund and Others, . Attention of this Court was invited to paragraphs 13 and 14 of the said judgment, which reads as under:

"13. The Courts below appeared to have taken note of the entries made in the revenue records wherein the name of the Municipal Corporation, Belgaum appeared in respect of CTS No. 4823/A-1. We have, however, noticed that the learned Trial Judge proceeded on the basis that the said property may be belonging to the defendants appellants. The Courts below not only passed a decree for prohibitory injunction but also passed a decree for mandatory injunction. The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the Courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the Courts shall exercise the same power while granting a decree permanent injunction in mandatory form without deciding the question of title and/or leaving the same open. However, in the event the structures are demolished, it would be possible for the appellants to work out their remedies in accordance with law in regard to the title of the property has not been spelt out by the High Court.

We, therefore, are of the opinion that the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for amendment of plaint praying inter alia for declaration of his title as also for damages as against the respondents for illegal occupation of the land. It would also be open to the parties to adduce additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the purpose of measurement of the suit land whether an Advocate-Commissioner or an officer of the Revenue Department."

Learned counsel for the appellant as well as learned counsel for the respondent have filed a joint Memo dated 28.10.2014. The Joint Memo reads as under:

"The appellant and the respondent humbly pray that, this Hon''ble Court may kindly set-aside the judgment and decree passed in O.S. No. 2409/2006 by the learned XVIII Additional City Civil and Sessions Judge at Bangalore and remand the matter back to the Trial Court, with a liberty to the parties to make necessary application to amend the pleadings and also adduce additional evidence, in the interest of justice and equity."

The proviso to Sub-Rule (1) of Order XLI Rule 14, reads as under:

"Provided that the Appellate Court may dispense with the service of notice on respondents, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred."

In the Trial Court, respondent No. 2 is placed ex-parte. In this proceedings, no notice is served on respondent No. 2.

This Regular First Appeal is disposed of in terms of the Joint Memo.

i) Judgment and decree in O.S. 2409/2006 passed by the learned XVIII Additional City Civil and Sessions Judge, Bangalore, is hereby set aside.

ii) The matter is remitted back to the Trial Court.

iii) Liberty is reserved to the parties to make necessary application to amend the pleadings, if any.

iv) Parties are also at liberty to adduce additional evidence, if any.

v) The Trial Court is directed to dispose of the matter within six months from the date of receipt of a copy of this order.