" eHV;'S.Rafi1ahna
.1-
IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 09TH DAY OF D1«:c1«::\/11353 2:309 3
BEFORE
THE HONBLE MR.JUSTI_CE _
1995
Between: V K
Chikkamma, -.
Aged 40 years, .
W/0 Maye G_0Wd_a',< V 3. _.
R/ a Puttappa H-§{:se,..
Shivanahalli, C
Bangalore Ng0r*t1é;D;_fI'a1L11;;--. «. Appellant
[by S;nt.SaDdh3raV_i:J.PraI5h1,1, Adv for
's:i;P.Kr1s1mappa, navy}.
2 ' ,W'/.01a_teaSubbarayappa,
' Aged' Gfijears,
'R/'a7No.'1--5S,
8%-'}_Maj:1~Réad, Malleswaram,
Banga1'dreV560 003. Respondent
., {by’_Sriv.VS.1\/Iruthyunjaya, Adv)
This appeal is filed 11/8 96 of CPC against the
V’ “judgment dated 29.8.92 and decree dated 22.3.95 passed in
OS.N0.5259/1980 on the file of the 14″‘ Add1.City Civil
Judge, Bangalore, decreeing the suit for deciaration.
W
i
This appeal coming on for Hearing this _th_e:lCou.rt
delivered the following: .. ~
JUDGMEM’ ‘ ~
This is defendant’s appeal lcE1a1.[enginplg_’v_iAthe
and decree dated 29.8.1992,”‘and 221.3’. 1.995 Sfelepeetiveiyl
passed in OS.No.5259;(‘i98Gi”[oltl:l;l$lo’.e§24/lll980}”‘on the file
XIV Additional City decreeing the
suit filed by of declaration and
possession”irfrespéetl schedule property.
–to this appeal are as under: The
suit initially filed on the file of II
Milhsiffs Bangalore for the relief of permanent injunction
l/.the:’defendant in respect of suit schedule property.
filed on 8.6.1980. Subsequently, the suit
transferred to City Civil Court, Bangalore and
nrenuriibered as OS.No.5259/1980 and continued there.
l”‘._lTExereafter, in the year 1989 plaintiff filed an application
‘V – -seeking the relief of declaration and possession in addition to
the prayer for the relief of permanent injunction. The said
application for amendment was allowed and the suit was
:’Ei;:,E
-3-
amended as on 4.4.1989. Subsequently, the;”‘”ri1«atte:rV5\;;fent
into trial and the suit of the plaintiffvion
29.8.1992.
3. The pecuiiar facts andeireurristanc.es’_.ot’the”ease are
that earlier to decreeing ‘Von 16.4.1992 when the
matter came up before -hearing both the
parties the matter ci_udg1nent. Subsequently,
the matte;””eaI__I1e.. and the Court made the
followmg.oi5ser\}at.ion:-{Std 2′
:’r_’A’For’ passed as found that
add_iptionai’VV.is’si£cS’.”have not been framed after
A. _varnen’drnent…*of”the. piaint and fiiing additional
written statement and the court fee point is
:n::g:yéd,._ So call on 21.4.1992 for hearing the
.. Subsequently, on 22.4.1992 an additional issue was
2 .. framed as under:~
“Whether the plaintiff proves that the court fee
paid and the valuation made are proper and
Correct?”
-4.
4. Thereafter, the matter was adjournedotofél
for recording of evidence of the parties on additioiial issue C
and it was again adjourned if
3.6.1992 the matter was adjourned to. 11.6.:._}_”9’9Q
chance. Thereafter, the matte»rT:Was posted”for_= and
the suit was decreed” as While
decreeing the suit ;_’t1’ial. answer the
additional ufivuhsvequent to decreeing
the suit the matter for enquiry
regarding also payment of Court fee
to hrocedure adopted by the trial
Court isuihgighlvi When the trial Court framed
additionalvg issue’«it._.was incumbent upon the trial Court to
‘ ;record.__the’«evidence of both parties and to hear arguments
‘the;-e019: a”n_dA’r1=thereafter to give a finding on the said issue
along the main matter. in the instant case, after the
if .. ffrnatterwswas reserved for judgment, the trial Court on its own
additional issue and posted the matter on three
if ” “occasions before the Court for recording of evidence. In the
absence of same decreed the suit in respect of other issues
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which were already framed and so far as additionai~.i._ssu.e”is
concerned, it has taken up for consideration_subse’quer1t”t–o
dismissal of the suit. In a similar situativong th4.isV«Court’g_the C
case of Perikal Malappa mus—_
reported in 2006(5) KL] he1d~.as” uadé::-
“16. Based on the_s_’i’ssuVesffrarnediby the Court,
the parties may — Whenever
additioinal are’ ‘b3’~:a Court at the
stage4Coff}udgii1ent;fj-ictllislithe-liduty of the Court to
-on additional issues and to
‘.pr0ceed’lit-“f1.i.rtheryin-…__the.’ matter. No Court is
expected’ judgment without giving
an the parties as it amounts to
infringernent of principles of natural justice.
3 s. -4Butlgunfortunately such procedure is not
the instant case. Therefore, this Court
the opinion that the judgment and decree of
Trial Court are required to be set aside and
the matter requires to be reconsidered by the
A Court by giving an opportunity to both the parties
to lead evidence if they desire to do so or to hear
the learned Counsel for the parties on the
additional issues.” ‘M4
.5.
5. In the light of ratio laid down by this…”.ogu’rte:i;n”the
aforesaid matter, the judgment and decree””pas’seclfl’byl’ ‘the
trial Court in os.No.5259/19sci”l{¢1d«No.._s24–.Z:i’9eQ)’*elated 7
29.8.1992 and 22.3.1995 respectixrellyygdoes
same is required to be set asidierand the matter to
be remitted back to tile. flholding’ fresh enquiry
regarding additional and to give a
finding there_o1’i gafter to both the
parties. 2 is 2 it
appeal filed by the defendant is
a1lowed.V”Tl1e decree passed by the trial Court
in._§.§l)S.§.\To.5259~.,/Vl98Ov {old No.62-4/1980] dated 29.8.1992
respectively are set aside. The matter is
the trial Court to hold enquiry regarding
additional issue framed on 22.4.1992 and to dispose of the
im.atter”‘ on merits within six months from the date of
2 “‘._eom’munication of copy of this judgment.
sd/»~
NC1/ ~