- 1 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MSA NO. 100013 OF 2021 (RO) BETWEEN: SHRI. NINGAPPA S/O. CHOLAPPA HOSAKOTI, AGE 74 YEARS, OCC: AGRICULTURE, R/O. BHAVIHAL-591125, TQ: BAILHONGAL, DISTRICT. BELAGAVI. …APPELLANT (BY SRI. SHIVRAJ S. BALLOLLI, ADVOCATE) AND: SHRI. SOORANAIK A/S/O. NINGAPPA HOSAKOTI, AGE 49 YEARS, OCC: AGRICULTURE, R/O. BHAVIHAL-591125, TQ: BAILHONGAL, DISTRICT. BELAGAVI. …RESPONDENT (BY SMT. P. G. NAIK, ADVOCATE) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER 43 RULE 1 (u) OF CPC, 1908, PRAYING TO CALL FOR TRIAL COURT RECORDS AND SET ASIDE THE JUDGMENT AND DECREE DATED 24.06.2021 IN RA NO.54/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, BY CONFIRMING THE JUDGMENT AND DECREE DATED 29.06.2019 IN O.S NO. 220/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, BAILHONGAL, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. Heard the arguments of the learned counsel representing both sides. 2. The plaintiff has filed a suit seeking relief of declaration that the defendant is not the adopted son of the plaintiff. It is contended that the plaintiff never adopted the defendant as his son. The alleged adoption deed was created by the defendant in collusion with the concerned authorities, as such, it will not bind the rights of the plaintiff. For these reasons, the plaintiffs prayed the Court be declare that the said document is not binding on him and affirm that the defendant is not the adopted son of the plaintiff. 3. The defendant has filed a detailed written statement denying the plaint averments. He has further contended that the plaintiff himself adopted the defendant when defendant was aged about four years. Accordingly, a registered adoption deed was executed on 19.05.2011. Due - 3 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 to the dispute between the parties, the plaintiff has filed a false suit, and for these reasons, the defendant prays that the suit be dismissed. 4. Based on the rival contentions of the parties, the trial Court framed the following issues: 1. Whether the plaintiff proves that the defendant got executed the adoption deed dated 19.05.2011 by playing fraud on him? 2. Whether the plaintiff proves that the said adoption deed is null and void? 3. Whether the plaintiff further proves defendant is the adopted son of the plaintiff? 4. Whether the plaintiff is entitled for he reliefs as prayed for? 5. What order or Decree? 5. To prove his case, the plaintiff examined three witnesses, as PW1 to PW3, and got marked three documents as Exs.P1 to P3. The trial Court records reveal that, after the filing of the written statement, the defendant did not actively prosecute the suit. He neither cross- - 4 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 examined PW1 to PW3 nor led any evidence on his behalf. As there was no rebuttal evidence, the trial Court, by the impugned judgment and decree dated 29.06.2019, decreed the suit in O.S. No.220/2012. 6. The defendant challenged the said judgment and decree in R.A. No.54/2019 before the Senior Civil Judge, Bailhongal. The First Appellate Court after hearing both parties and considering their contentions, found that the defendant could not prosecute the suit for the justifiable grounds. Therefore, by the impugned judgment and decree dated 24.06.2021 allowed the appeal and set aside the judgment and decree passed in O.S. No.220/2012 on 29.06.2019, and remanded the matter to the trial Court under Order 41 Rule 25 of the CPC. The trial Court was directed to provide the defendant an opportunity to cross- examine the plaintiff and his witnesses; similarly present defendant to lead his evidence, and thereafter dispose of the matter in accordance with law. - 5 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 7. The said order of remand has been challenged by the appellant in the present appeal on the grounds mentioned in the appeal memorandum. 8. Learned counsel appearing for the appellant submits that the trial Court had provided more than sufficient opportunities to the defendant to cross-examine PW1 to PW3 and to lead his evidence. The matter had been pending before the trial Court for nearly seven years. The order sheet reveals that on all the date of hearing, the defendant was absent. Therefore, it was due to his negligence that he failed to prosecute the mater. The First Appellate Court did not consider these facts and, instead, mechanically remanded the matter to the trial Court for reconsideration. With these reasons, the appellant prays that the judgment and decree be set aside and the matter be restored to the First Appellate Court to decided the appeal on its merits. 9. Learned counsel appearing for the respondent vehemently contends that the respondent was a laborer, - 6 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 earning his livelihood by working as a coolie and frequently travelled to different towns. As a result, he was unable to contact his advocate and properly instruct him to prosecute the suit. He had justifiable reasons for leaving his native place and going elsewhere to earn his livelihood. The First Appellate Court considering theses facts, allowed the appeal and remanded the matter to the trial Court. There are no illegality in the said order. Therefore, the respondent prays that the appeal be dismissed with costs. 10. On hearing the learned counsel appearing for the parties, the following point arises for consideration, “Whether the First Appellate Court was justified in remanding the matter to the trial Court to reconsider the case of the defendant?” 11. It is an admitted fact that the defendant did not prosecute the case before the trial Court. He did not cross- examine PW1 to PW3. He did not lead his evidence. Therefore, apart from filing written statement, he did not take part in the proceedings before the trial Court. The First Appellate court considering all these facts held that if the - 7 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 defendant is given an opportunity to prosecute the suit, in accordance with law, the trial Court could then decide the real dispute between the parties on its merits. In paragraph No.38 of the impugned judgment, the First Appellate Court exercising its power under Order 41 Rule 25 of the CPC, allowed the appeal and remanded the matter. The First Appellate Court did not commit any illegality in remanding the matter to provide the defendant an opportunity to cross-examine the plaintiff’s witnesses and lead his evidence. 12. The trial Court found that due to bonafide reasons defendant could not prosecute the suit when it was pending before trial Court. On reconsidering of the said reasons, this Court is of the view that the reasons do not appear to be mala fide and moreover the defendant would not gain any benefit by not prosecuting the case. Under these circumstances, the remand of the matter by the First Appellate court is justifiable. - 8 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 13. The defendant remained away from the court when the matter was pending before the trial Court due to which deciding of the case was delayed by four years. As a result the plaintiff who is a senior citizen, was unable to proceed with the matter, and every date of hearing time was prayed and granted. Considering these facts and circumstances, the First Appellate Court should have imposed heavy costs on the defendant to ensure that justice is done to plaintiff also. However, no such costs were imposed by the First Appellate Court while remanding the matter to the trial Court. In view of the facts and circumstances of the case, it is necessary to impose costs to meet ends of justice. 14. For the aforesaid reasons, the point framed above is answered in the affirmative and proceed to pass the following: ORDER (i) The appeal is dismissed. No costs. - 9 - NC: 2025:KHC-D:5276 MSA No. 100013 of 2021 (ii) The respondent / defendant is directed to pay cost of Rs.20,000/- to the plaintiff as compensation for not prosecuting the suit before the trial Court properly. (iii) The cost imposed shall be a condition precedent for the defendant to prosecute the suit before the trial Court. (iv) Four weeks’ time is granted to the defendant to deposit the cost of Rs.20,000/- before the trial Court from today. (v) The Registry is directed to send back the trial Court records (TCR) along with copy of this order to the trial Court forthwith. Sd/- (UMESH M ADIGA) JUDGE VNP /CT-AN List No.: 1 Sl No.: 9