- 1 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.51 OF 2023 (RO) BETWEEN: 1. 1(a) BASAVARAJAPPA, S/O LATE MADAPPA, DEAD BY HIS LRS. SMT.SHIVAMMA, W/O LATE BASAVARAJAPPA, AGED ABOUT 70 YEARS. 1(b) MAHADEVASWAMY, S/O LATE BASAVARAJAPPA, AGED ABOUT 45 YEARS. BOTH ARE R/AT KOODANAHALLI VILLAGE, SOMESHWARAPURA POST, VARUNA HOBLI, MYSURU TALUK, MYSURU DISTRICT-571 311. (AMENDED VIDE ORDER DATED 24.10.2024) 2. CHINNAMMA, W/O LATE VEERANNA, AGED ABOUT 72 YEARS, R/AT CHIKKAKANAGALA VILLAGE, AALUR TALUK, HASSAN DISTRICT-573213. 3. VEERABHADRA, S/O LATE VEERANNA, AGED ABOUT 50 YEARS, R/AT CHIKKAKANAGALA VILLAGE, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 AALUR TALUK, HASSAN DISTRICT-573213. …APPELLANTS (BY SRI. PULAKESHI A.P., ADVOCATE) AND: 1. SIDDALINGAMMA, W/O LATE MAHADEVAPPA, AGED ABOUT 82 YEARS. 2. BASAVANNA, S/O LATE MAHADEVAPPA, AGED ABOUT 67 YEARS. 3. 3(a) NAGARAJU, S/O LATE MAHADEVAPPA, AGED ABOUT 62 YEARS, DEAD BY HIS LRS. SMT.RAJAMMA, W/O LATE NAGARAJU, AGED ABOUT 52 YEARS. 3(b) MANJU K.N., S/O LATE NAGARAJU, AGED ABOUT 32 YEARS. 3(c) CHANDRU K.N., S/O LATE NAGARAJU, AGED ABOUT 29 YEARS 3(d) RANI, D/O LATE NAGARAJU, AGED ABOUT 26 YEARS. ALL ARE R/AT KOODANAHALLI VILLAGE, SOMESHWARAPURA POST, VARUNA HOBLI, MYSURU TALUK MYSURU DISTRICT-571 311. (AMENDED VIDE ORDER DATED 05.09.2024) - 3 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 4. PUTTAMMA D/O LATE MAHADEVAPPA, AGED ABOUT 52 YEARS. 5. RATHNAMMA D/O LATE MAHADEVAPPA, AGED ABOUT 47 YEARS. 6. SHIVAMALLAPPA S/O LATE MAHADEVAPPA, AGED ABOUT 42 YEARS. 7. SIDDAPPA S/O LATE MAHADEVAPPA, AGED ABOUT 40 YEARS. 8. SIDDARAJU, S/O LATE MAHADEVAPPA, AGED ABOUT 37 YEARS. ALL ARE RESIDENTS OF KOODANAHALLI VILLAGE VARUNA HOBLI, MYSURU TALUK, MYSURU DISTRICT-573 213. …RESPONDENTS (BY SRI. P. NATARAJU, ADVOCATE FOR R1, R2, R6 AND R7; VIDE ORDER DATED 05.01.2024, NOTICE TO R4 AND R8 HELD SUFFICIENT; R4, R8, R5 – SERVED; R3(a), R3(b), R3(c), R3(d) – SERVED) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) R/W SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.07.2022 PASSED IN R.A.NO.91/2020 (180/2019) ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 16.08.2019 PASSED IN O.S.NO.684/2009 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU. THE SUIT IN O.S.NO.684/2009 IS RESTORED TO THE FILE OF TRIAL COURT WITH DIRECTION TO EXPEDITE THE SUIT AND DISPOSED OF THE SAME AS EARLY AS POSSIBLE FROM THE STATE IN WHICH THE PLAINT IS REJECTED. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for respondent Nos.1, 2, 6 and 7. 2. The factual matrix of the case is that the plaintiff filed a suit for the relief of declaration and permanent injunction since he was unsuccessful in the earlier suit for bare injunction and in the suit, an application is filed under Order 7 Rule 11(d) read with Section 151 of CPC. The Trial Court having considered the grounds urged in the application, allowed the application and rejected the plaint, but no reasons are assigned in the impugned order for invoking of Order 7 Rule 11(d) of CPC, except making an observation with regard to the respondents herein were unsuccessful in O.S.No.172/1987, R.A.No.407/2004 and R.S.A.No.1861/2006 and the said suit was filed only for the relief of bare injunction and the said order was challenged in R.A.No.91/2020. The First Appellate Court having considered the grounds urged in the appeal and also the impugned order, in paragraph No.22 made an observation that the earlier suit was only for the - 5 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 relief of bare injunction and in respect of title, there were no issues and issues were also not framed and any attainment of finality with regard to title is concerned and the Trial Court ignored the fact that the cause of action and the relief sought for in the present suit is totally different from the previous suit and the issue of title was not adjudicated. The First Appellate Court also made an observation that the order passed by the Trial Court is not a speaking order and hence set aside the order and remitted back the matter to the Trial Court to dispose of the same as early as possible from the stage in which the plaint was rejected and directed the parties to appear before the Trial Court on 30.08.2022. 3. The said order is challenged before this Court. The main contention of the learned counsel for the appellants is that the First Appellate Court has committed an error in passing such a judgment. The First Appellate Court is not justified in setting aside the order dated 16.08.2019 passed by the Trial Court and hence this Court has to frame the substantial question of law. It is also contended that the plaintiffs’ suit is barred by law of limitation. - 6 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 4. Per contra, the learned counsel for respondent Nos.1, 2, 6 and 7 contend that the First Appellate Court having considered the grounds urged in the appeal and as the issue of title was not decided, remitted back the matter to the Trial Court to consider the same on merits. 5. Having heard the learned counsel for the appellants and the learned counsel for respondent Nos.1, 2, 6 and 7, it is not in dispute that the earlier suit was filed for the relief of bare injunction and the same was dismissed on the ground that there is a cloud on the title and the suit for bare injunction is not maintainable. The same was challenged before the First Appellate Court and this Court and the judgment of the Trial Court was affirmed and hence a fresh suit was filed for the relief of declaration and injunction. In the said suit, I.A.No.6 was filed before the Trial Court invoking Order 7 Rule 11(d) of CPC and the Trial Court having made an observation referred above, allowed the application and rejected the plaint and nothing is discussed with regard to the provisions of Order 7 Rule 11(d) of CPC in the order having gone through the said order. The said order was rightly set aside by the Appellate Court considering the fact that the - 7 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 earlier suit is different from the subsequent suit and the earlier suit was for the relief of bare injunction and the second suit is for the relief of declaration and title has not been adjudicated. The First Appellate Court also observed that the Trial Court has not passed a speaking order. It is important to note that this Court has also made an observation that nothing is discussed in the order of the Trial Court while allowing I.A.No.6 as to how Order 7 Rule 11(d) of CPC applies. The First Appellate Court in paragraph No.22, reconsidered the whole issue between the parties and set aside the order of the Trial Court and remitted the matter to the Trial Court. Having considered the reasons assigned by the First Appellate Court, I do not find any error committed by the First Appellate Court in setting aside the order of the Trial Court, which is not a speaking order and nothing is discussed about Order 7 Rule 11(d) of CPC. 6. The learned counsel for the appellants would contend that the subsequent suit is barred by limitation. The issue of limitation involves mixed question of fact and question of law and the same has to be determined having recorded the evidence before the Trial Court. Hence, I do not - 8 - HC-KAR NC: 2025:KHC:21902 MSA No. 51 of 2023 find any error committed by the First Appellate Court in remanding the matter and the matter has to be considered on merits including the issue of limitation as contended by the learned counsel for the appellants. Hence, no merits in the second appeal to admit the same. 7. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 39