- 1 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA MISCELLANEOUS SECOND APPEAL NO. 226 OF 2025 (RO) BETWEEN: 1. SMT. LAKSHMIDEVAMMA W/O. SIDDALINGAIAH AGED ABOUT 75 YEARS 2. SIDDALINGAIAH S/O. LATE KAPINAIAH AGED ABOUT 80 YEARS BOTH ARE AGRICULTURISTS RESIDENT OF NARANAHALLI C.S. PURA HOBLI, GUBBI TALUK TUMAKURU DISTRICT - 572 213. …APPELLANTS (BY SRI. G. RAVISHANKAR, ADVOCATE AND SRI. A.V. GANGADHARAPPA, ADVOCATE) AND: SMT. NINGAMMA W/O. LATE SIDDAPPA AGED ABOUT 68 YEARS AGRICULTURIST RESIDENT OF NARANAHALLI C.S. PURA HOBLI GUBBI TALUK TUMAKURU DISTRICT - 572 213. …RESPONDENT (BY SRI: K. VIJAYA KUMAR, ADVOCATE) THIS MSA IS FILED UNDER SECTION 43 RULE (1)(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.07.2025 PASSED IN RA NO.45/2024 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.02.2024 Digitally signed by NANDINI B G Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 PASSED IN OS. NO.112/2022 ON THE FILE OF LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, GUBBI, PARTLY DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. THE CASE IS REMANDED BACK TO THE TRIAL COURT WITH A DIRECTION TO RECEIVE ADDITIONAL EVIDENCE AND THEN TO CONSIDER THE MATTER AFRESH. THIS MSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT The defendants in OS No.112 of 2022 on the file of the learned Additional Senior Civil Judge and JMFC, Gubbi (hereinafter referred to as 'the Trial Court' for short), are impugning the judgment and decree dated 24.07.2025 passed in RA No.45 of 2024 on the file of the learned VI Additional District and Sessions Judge, Tumakuru (hereinafter referred to as 'the First Appellate Court' for short), allowing IAs.II and III filed under Order 41 Rule 27 read with Section 151 of CPC permitting the appellant therein to produce additional documents, and allowing IA.V filed under Order 6 Rule 17 permitting the appellant therein to amend the appeal memorandum, while reserving liberty to the plaintiff to file necessary application before the Trial Court seeking amendment of the plaint, by setting side the impugned judgment and decree dated 20.02.2024 passed by the Trial - 3 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 Court and remanding the matter to the Trial Court with a direction to receive additional evidence and to consider the matter afresh. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Facts of the case in brief are that, the plaintiff filed the suit OS No.112 of 2022 before the Trial Court seeking declaration in respect of Sy.No.37 of Naranahalli Village, C S Pura Hobli, Gubbi Taluk, contending that she is the absolute owner of the said property, but the defendants have encroached over 13 guntas of land and therefore, sought for possession of the encroached portion and for permanent injunction in respect of the remaining portion of the schedule property. The Trial Court decreed the suit of the plaintiff in part by declaring that the plaintiff is the absolute owner in possession of 1 acre 12 guntas of land in Sy.No.37 by virtue of gift deed dated 16.01.1964 and rejected the claim of the plaintiff in respect of remaining 1 acre 5 guntas of land and 13 guntas in Sy.No.37. - 4 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 4. Being aggrieved by the rejection of a portion of the claim, the plaintiff has preferred RA No.45 of 2024 before the First Appellate Court. The plaintiff filed IAs.II and III under Order 47 Rule 27 of CPC seeking permission for production of additional documents; IA.IV under Order 26 Rule 9 of CPC seeking appointment of Court Commissioner; IA.V seeking amendment of memorandum of appeal; and IA.VI seeking amendment of plaint. The First Appellate Court on consideration of the contentions raised by the parties, allowed IAs.II, III and V while rejecting IAs.IV and VI. Being aggrieved by the same, the defendants are before this Court. 5. Heard Sri G Ravishankar and Sri A V Gangadharappa, learned counsel for the appellants and Sri K Vijaya Kumar, learned counsel for the respondent. Perused the materials including the Trial Court records. 6. Learned counsel for the appellants contended that when the suit was decided on merits by the Trial Court and when the additional documents were produced before the First Appellate Court, without assigning any valid reasons, it has - 5 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 committed an error in allowing IAs.II and III permitting the plaintiff to produce those additional documents. 7. Secondly, it is the contention of the appellants that when the Trial Court has recorded the evidence and permitted the parties to produce documents, the plaintiff has not assigned any valid reason for non production of those additional documents before the Trial Court and the plaintiff has also not explained as to why such pleadings were not pleaded before the Trial Court. When no reasonable explanation is forthcoming for non production of the documents before the Trial Court, and when the same is produced before the First Appellate Court, it has committed an error in allowing IAs.II and III. 8. Thirdly, it is the contention of the learned counsel for the appellants that even if the First Appellate Court is of the opinion that IAs.II and III are to be allowed and the judgment and decree passed by the Trial Court is to be set aside, it should have been remanded the matter back to the Trial Court only for a limited purpose to record the additional evidence by marking additional documents and should have considered the appeal on merits. Learned counsel placed reliance on the - 6 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 decision in Shanthaveerappa Vs K N Janardhanachari1, in support of his contention and prays to allow the appeal. 9. Learned counsel for the respondent, on the other hand, opposing the appeal submitted that one Kalamma was the original owner of the land in question under whom the plaintiff is claiming right being the legal representative of her husband Siddappa. Siddappa, the husband of the plaintiff filed the suit OS No.163 of 1986 against the said Kalamma seeking permanent injunction on the ground that she had executed agreement of sale and put the plaintiff in possession of the land in question. The said suit was decreed and the judgment and decree in OS No.163 of 1986 is produced before the Trial Court and got it marked as Ex.P5. Ignoring the same, the Trial Court rejected the claim of the plaintiff in respect of the portion of the land and that is why the plaintiff has searched for the documents and produced the same before the Trial Court. The First Appellate Court was right in considering the grounds made out for production of additional documents and in allowing the same. No prejudice would be caused to the defendants by the 1 ILR 2007 KAR 1127 - 7 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 impugned judgment and decree and therefore, prays for dismissal of the appeal. 10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment and decree passed by the First Appellate Court reversing the impugned judgment and decree passed by the Trial Court and remanding the matter to the Trial Court suffers from illegality or perversity and calls for any interference by this Court?" My answer to the above point is in the 'Negative' for the following: REASONS 11. On consideration of the decision in Shanthaveerappa (supra), the Court has made elaborate observations on various provisions of law, including Order 41 Rule 23 and 23A of CPC. The Court has made it clear that the power is conferred on the Appellate Court under Rule 23A similar to that of Rule 23 of CPC and thus even if the Trial Court had disposed of the suit on merits, the said judgment is - 8 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 reversed in appeal and the Appellate Court feels a re-trial is necessary, it has jurisdiction to order for an open remand. 12. The Appellate Court while passing the impugned judgment and decree referred to various decisions of the Hon'ble Apex Court and observed that the plaintiff has pleaded about agreement for sale and on the basis of said agreement, she is in possession of the land. The First Appellate Court also refers to the suit filed against Kalamma, where she has filed the written statement admitting execution of agreement for sale. However, there is no reference to the suit OS No.163 of 1986. It is not in dispute that the judgment and decree in OS No.163 of 1986 was produced by the plaintiff before the Trial Court claiming right over the schedule property. However, the agreement for sale and the written statement filed by Kalamma, under whom the plaintiff claims right and the mutation entry No.23/1993-94 are produced as additional documents in IA.III. Similarly, IAs.II was filed seeking permission to produce record of rights, RTC extracts, survey sketch prepared by the Taluka Surveyor in respect of Sy.No.37. - 9 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 13. In the affidavit accompanying both these applications, the plaintiff has stated that her husband Siddappa had purchased the property in question and he was in possession of a portion of schedule property under the agreement for sale. Since the Trial Court has dismissed her claim in respect of portion of the land, she consulted her advocate and came to know that her claim over the property in question was rejected for non production of original agreement for sale and therefore, she searched in the safe box possessed by her husband and found the original documents and produced the same. 14. Admittedly, OS No.163 of 1986 was filed by Siddappa. He is no more. The present suit was filed by the plaintiff who is none other than the wife of Siddappa. Under such circumstances, the reasons assigned by the plaintiff for non production of documents before the Trial Court is quite reasonable and it cannot be held that deliberately the plaintiff has withheld those material documents. It is also pertinent to note that a comprehensive suit for declaration of title of the plaintiff, for possession of encroached area and for permanent - 10 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 injunction in respect of the remaining extent of land was filed by the plaintiff. Under such circumstances, there was absolutely no reason for the plaintiff to withhold those material documents, unless she was prevented from the reasons assigned in the affidavit accompanying IA Nos.II and III. 15. The First Appellate Court was satisfied with the grounds made out in the affidavit and allowed IA Nos.II and III by holding that in view of the additional documents and also in view of allowing IA.V seeking amendment of memorandum of appeal, the matter requires re-adjudication for which remanding the matter for fresh consideration is necessary by ordering open remand. Even in Shanthaveerappa (supra), the decision relied on by the learned counsel for the appellants, the Court has made it very clear that the power similar to Rule 23 is conferred on the Appellate Court under Order 23A, where the Court feels re-trial is necessary, it has jurisdiction to order for open remand. In that view of the matter, I do not find any illegality or perversity in the judgment passed by the First Appellate Court. Accordingly, I answer the above point in the Negative and proceed to pass the following: - 11 - HC-KAR NC: 2025:KHC:42637 MSA No. 226 of 2025 ORDER The Appeal is dismissed. Consequently, IA.1 of 2025 filed for stay stands disposed off. Sd/- (M G UMA) JUDGE *bgn/- CT:VS List No.: 2 Sl No.: 27