IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous Second Appeal No. 77 of 2019 (RO) Between:
1. SMT. SANNAMMA WIFE OF LATE DOBBALINGAPPA AGED ABOUT 63 YEARS.
2. SRI. SHIVALINGAIAH SON OF LATE DOBBALINGAPPA AGED ABOUT 43 YEARS.
3. SMT. RATHNAMMA WIFE OF SHIVANNA AGED ABOUT 40 YEARS.
4. SMT. MARAKKA DAUGHTER OF LATE DOBBALINGAPPA AGED ABOUT 36 YEARS.
ALL ARE RESIDENT OF BELLADAMADAGU VILLAGE KASABA HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT – 572 132.
... APPELLANTS (BY SRI. G. S. VENKAT SUBBA RAO ., ADVOCATE) And:
SRI. T. RAMAPPA ALSO CALLED AS RAMANNA SON OF THIPPERANGAPPA AGED ABOUT 65 YEARS RESIDENT OF THUNGOTI VILLAGE KASABA HOBLI, MADHUGIRI TALUK TUMKUR DISTRICT – 572 132.
(BY SRI. KAMARAJU., ADVOCATE) ... RESPONDENT THIS MISCELLENEOUS SECOND APPEAL IS FILED UNDER ORDER 43 RULE1(U) OF CPC AGAINST THE JUDGMENT DATED 20.08.2019 PASSED IN RA NO. 65/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.07.2018 PASSED IN OS NO. 411/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, MADHUGIRI, AND REMANDING BACK THE MATTER TO CIVIL COURT WITH DIRECTION TO READMIT THE CASE.
THIS MISCELLENEOUS SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the legal representatives of the deceased defendant in O.S.No.411/2008 on the file of the Additional Civil Judge and JMFC, Madhugiri (for short, the ‘civil Court’) impugning judgment in R.A.No.65/2018 on the file of the Principal Senior Civil Judge and JMFC at Madhugiri (for short, the ‘appellate Court’). The appellate Court by the impugned judgement has set aside the civil Court’s judgement dated 07.07.2018 and remanded the suit for re-adjudication allowing the applications filed by the respondent – plaintiff under Order VI Rule 17 and Order XVI rule 7 of the Code of Civil Procedure (for short, ‘CPC’).
2. The respondent has filed the suit in OS No.
411/2018 for declaration of title to the land measuring 2 acres 7 guntas in Survey No.41/2 of Doddaveeragondanahalli village, Kasaba Hobli, Madhugiri, and he has sought for delivery of possession of a portion on the southern side of the suit land allegedly encroached by the defendant with the relief for permanent injunction from interference with his peaceful possession and enjoyment. The respondent has contended that he purchased the suit land under the sale deed dated 28.2.1997, and at the time of purchase, the suit land was numbered as 41/P. However, after the subsequent phodi proceedings, the suit land is numbered as Survey No.41/2. The defendant, being the owner of the adjacent land on the southern side of this land in Survey No.41/2, has encroached upon a portion demolishing the ridge that separates the two lands taking advantage of the respondent’s absence.
3. The defendant, now represented by the appellants, on the other hand, contended that he was in possession of an extent measuring 1 acre 37 guntas in Survey No.41 having purchased the said extent from Sri Linganna, son of Channalinganna of Marithimmanahalli under the sale deed dated 20.3.1975. The khata for this extent of 1 acre 37 guntas is made in his favour immediately after the sale deed dated 20.3.1975 vide M.R.No.2/1975-76. His land and the land claimed by the respondent are bifurcated by a demarcating ridge that has been in existence from time immemorial and in fact, the boundary is undeniably established by the trees standing on the demarcating ridge. In any event, he has perfected his title to the land in his possession by adverse possession.
4. The respondent has relied upon Exs.P6 and P7, a survey sketch and a report, to substantiate his claim for declaration of title to the suit land and for delivery of possession of the alleged encroachment. The civil court has concluded that the respondent has not been able to discharge the burden of establishing these exhibits because the respondent has not examined the author of the sketch or the report as per Exs.P6 and P7, and the civil Court has also negated the assertion by the defendants, and after him the appellants, that the defendants have perfected their title by adverse possession concluding that the appellants have not been able to establish the necessary animus to succeed in the defense of adverse possession. Ultimately, the civil Court has concluded that because the respondent has neither pleaded nor established the actual encroachment, he is not entitled for the relief of either declaration or possession.
5. The respondent being aggrieved by the civil Court’s judgment filed the first appeal in R.A.No.65/2018. The appellate Court has by the impugned judgment intervened and set aside the civil Court’s judgment allowing the application filed by the respondent before the civil Court under Order VI Rule 17 of CPC and Order XVI Rule 7 of CPC remanding the suit to the civil Court with a direction to readmit the case on its original number and to decide the suit on merits after permitting the amendment as prayed for and affording an opportunity to the respondent to examine the surveyor and such other witnesses as he proposes. The appellate Court has also directed the civil Court to dispose of the suit within three months from 3.9.2019. The appellate Court has intervened because it has opined that the civil Court after rejecting the applications filed by the respondent viz., the application under Order VI Rule 17 of CPC could not have drawn adverse inference against the respondent for non- examination of the author of Ex. P6 and P7.
6. In the light of the rival submissions by the learned counsel for the parties, the substantial question of law that arises for consideration is:
“Whether the appellate Court is justified in allowing the applications under Order VI Rule 17 and Order XVI Rule 7 of CPC and if the appellate court is justified in allowing these applications, is the appellate court justified in remanding the suit back for reconsideration by the civil Court”.
7. The learned counsel for the parties do not dispute that the respondent’s initial application under Order VI Rule 17 before the civil Court to amend the plaint to mention the extent of encroachment as 32 guntas was rejected by the civil Court. Thereafter, the respondent filed two applications viz., an application for reopening the case and for issuance of summons under Order XVI Rule 7 of CPC to the surveyor who had issued Ex.P6 and P7 to give evidence. The civil Court has rejected even these applications. Further, the learned counsel for the parties do not dispute that the respondent, though he filed the suit asserting that the defendant had encroached a portion of the suit schedule land, had not mentioned the extent of encroachment. This remained a lacuna until the aforesaid application for amendment was filed.
8. The respondent insofar as the prayer for declaration of title to the suit land, including the alleged extent of encroachment, relies upon a survey conducted at his instance by the authorities during the pendency of the suit, Exs.P6 and P7 and the consequences of such survey proceedings. The civil Court has refused to rely upon these documents viz., Exs.P6 and P7 on the ground that the respondent did not examine the author who prepared these exhibits. But, the appellate Court could not have interfered with the civil Court’s judgment allowing the application for amendment and issue of summons solely on the ground that the civil Court despite rejecting the application for amendment as well as issuance of summons to the surveyor had drawn adverse inference against the respondent.
9. It is settled law that the appellate Court can allow amendment of the pleadings even at the appellate stage, but it cannot ignore the parameters against which the request for amendment of the pleadings will have to be assessed. In fact, this Court way back in the year 1968 in the decision reported in Akkanagamma and others vs. Nageswaraiah and another, reported in AIR 1968 Mysore 266 has held that although the appellate courts do have the power in appropriate cases to permit amendment at the appellate stage, the appellate courts should not allow amendment unless it is first convinced that there is an error in the decree of the civil court because that would relieve the party, who has suffered the judgment in the original proceedings, from the consequences of a decision rendered on merits. Further, the question whether amendment would be necessary for effective adjudication of the real controversy, subject to other restrictions, will have to be considered while allowing an application for amendment at the appellate stage. The assessment in this regard would be significant because the amendment even before the trial court, in view of the proviso to Order VI Rule 17 of CPC, cannot be allowed unless the concerned party is able to demonstrate that he could not bring proposed amendment much earlier despite due diligence. A useful reference in this regard could be made to the decision of the Hon’ble Supreme Court in Chakreswari Construction Pvt., Ltd., vs. Manohar Lal reported in (2017) 5 SCC 212.
10. The appellate Court has not examined the question of allowing the amendment in the light of the settled law, nor the circumstances under which additional evidence could be permitted at the appellate stage. Therefore, this court is of the considered opinion that the appellate Court has erred in allowing the amendment application and the application for issuance of witness summons to the surveyor who has issued Exs.P6 and P7, and that the appropriate course of action would be to set aside the impugned judgment and call upon the appellate Court to reconsider the applications in the light of the settled law in that regard.
11. Further, it is settled that the appellate courts cannot mechanically remand the matter back for reconsideration because applications for amendment and additional evidence is permitted, given the wide amplitude of its jurisdiction under Section 96 of CPC. If any further evidence indeed is required for complete adjudication, the appellate Court, subject to the provisions of the CPC in that regard, while permitting additional evidence, can itself record evidence, or call for a report from the trial court and decide the case on merits. It would be helpful to refer to the decision of this Court in Shanthaveerappa vs. Janardhanachari, ILR 2007 Kar.1127. As such, in the considered opinion of this Court, it would also be appropriate and reasonable to call upon the appellate court to decide whether a remand to the civil Court would be justified if it is of the opinion that the applications filed by the appellant will have to be allowed. Therefore, the following:
ORDER The appeal is allowed in part and the judgment dated 20.8.2019 in R.A.No.65/2018 on the file of the Prl. Senior Civil Judge and JMFC, Madhugiri is set-aside and the appeal is restored to the board of the Court to reconsider the applications filed by the respondent under Order VI Rule 17 and Order XVI Rule 7 of CPC and decide the appeal in the light of the observations made by this Court.
The parties shall appear before the appellate Court without further notice of first hearing on 09.12.2019. The appellate Court shall expedite a decision on the appeal as aforesaid at the earliest, but within an outer limit of six months.
SD/- JUDGE nv