M.M. Ramaswamy and Others vs Anjanappa and Others

A.V. Chandrashekara, J.—The main appeal No. 198/2011 has been filed by one Mr.M.M. Ramaswamy - the 1st defendant in O.S. No. 256/1995 pending on the file of the Principal Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore. The connected appeal MSA No. 120/2011 has been filed by the same person Sri M.M. Ramaswamy - the plaintiff.

For the sake of convenience parties will be referred to as plaintiff and defendant Nos. 1 to 7 as per their ranking before the Trial Court.

Plaintiff - M.M. Ramaswamy, has filed a suit for the relief of declaration to the effect that the mutation entry passed by the revenue department is illegal and incorrect. The said suit was contested by defendant No. 3 and also defendant Nos. 4 and 5 who are the subsequent purchasers to the suit schedule property. During the pendency of the suit an application under Order 23 Rule 3 of CPC was filed on the ground that the plaintiff and defendant No. 3 had entered into an agreement on their own volition, which was numbered as I.A. No. 8. The said application so filed under Order 23 Rule 3 of CPC purported to be an agreement between the plaintiff and the defendants, was disputed by defendant No. 3, as a result of which a limited enquiry was held and I.A.8 was dismissed after contest. Against the rejection of LA filed under Order 23 Rule 3 of CPC, a writ petition was filed before this Court and the writ petition was allowed directing the trial Court to examine the parties in regard to the authenticity of I.A. No. 8. A limited enquiry was held and I.A. No. 8 was allowed and suit was disposed of in terms of the compromise petition, as against which a Regular Appeal No. 86/2010 was filed before the Bangalore Rural District, Bangalore.

Two separate appeals were filed under Section 96 of CPC, one appeal by the 3rd defendant, another appeal by Defendants 4 and 5. Appeal was filed under Section 96 of CPC before the District Court, at Bangalore Rural District, and was transferred to FTC-IV was numbered as RA No. 83/2010. Appeal filed by Anjanappa/Defendant No. 4 was numbered as RA No. 86/2010. Both these appeals have been allowed separately on 10.06.2011. Consequently, following direction is given to the Trial Court by remanding the matter.

"I.A. No. II is allowed. The appeal is allowed with costs. The Judgement and decree passed by the trial court allowing I.A. No. VIII in O.S. No. 256/95 is set aside. The matter is remanded to the trial court with a direction to dispose of the I.A.No.VIII and the suit afresh on merit by giving opportunity to all the parties to adduce their oral and documentary evidence on merits and also on I.A.No.VIII.

Office to draw decree accordingly.

Office to send the documents produced along with I.A.No.II by the appellant along with LCR to the concerned Court."

The Judgment and Decree passed in O.S. No. 256/1995 on the basis of the compromise entered into between the parties, is set aside and the matter is remanded to the Trial Court with a direction to dispose of I.A.VIII as well as the suit afresh on merits by giving opportunity to all the parties to adduce their oral and documentary evidence on merits and also on I.A.VIII.

It is these Judgments which are called in question on various grounds as set out in the various appeals filed under Order 43 of CPC.

Heard the learned counsels for the parties at length. After going through the records, it is evident that the First Appellate Court has considered at length the aspect of I.A.VIII. It has come to a definite conclusion that the authenticity of I.A.VIII is in serious question. The author Sri. P. Krishnappa needs to be examined as a witness and without examining him, no comprehensive decision could be taken on I.A.VIII. The learned Judge has come to the conclusion that the Trial Court could not have compared the disputed signature with the admitted signature. Though the Court has power under Section 73 of the Evidence Act to compare the disputed signature with the admitted signature, prudence demands that such an exercise should not be done unless an opinion is obtained from the expert. These principles have been very vividly explained in the case of The State (Delhi Administration) Vs. Pali Ram, . In this view of the matter, the finding given by the First Appellate Court that I.A.VIII needs to be considered afresh only after examining Sri. P. Krishnappa, practicing advocate, cannot be found fault with.

What is argued before this Court by Sri. R.B. Sadashivappa for Defendant No. 3 is that the First Appellate Court could not have remitted the matter to the Trial Court to consider the suit afresh when the very authenticity of I.A.VIII is unquestioned. The reasonable inference that can be drawn from the operative portion of the orders passed in the Regular Appeal No. 83/2010 is that the implied intention of the Trial Court is that I.A.VIII must be taken up first and if for any reason, I.A.VIII were to be rejected, the Trial Court would be at liberty to consider the matter on merits by giving an opportunity to the parties to lead evidence on the issues that may be framed.

Any how, neither the 3rd defendant nor the 4th defendant have challenged the Order of the First Appellate Court passed in R.ANos.83/2010 and 86/2010 in so far as it relates to the enquiry to be held on I.A.VIII by the Trial Court. In the light of non-filing of an appeal by Defendant No. 3 or 4 to the suit, remanding the matter to consider I.A.VIII afresh keeping in mind the observation made therein is justified. Hence, there is no merit in these appeals and these appeals will have to be disposed of with clarification.

Appeals are disposed of by clarifying that I.A.VIII must be taken up first and necessary enquiry to be held as indicated by the First Appellate Court and if for any reason, I.A.VIII were to be dismissed, the parties would be at liberty to lead additional evidence on the issues which may be framed by the Trial Court.

In the event of allowing I.A.VIII, question of considering the suit on merits does not arise and if the parties are aggrieved by the Order that would be passed on I.A.VIII, necessary provision is found to file a regular appeal.

Since the parties have been prosecuting for almost 1 1/2 decades, the Trial Court to give top priority to the suit. The parties and the learned advocates to co-operate with the learned Judge in disposing of the matter as expeditiously as possible preferably within a period of six months from to-day. There is no Order as to costs.