- 1 - HC-KAR NC: 2025:KHC:29897 RSA No. 1941 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1941 OF 2021 (RES) BETWEEN: ANIL K. KEMBAR S/O M. SRINIVASA SALIAN AGED ABOUT 50 YEARS, RESIDING AT FLAT NO.G-1 "PROVIDENCE BLISS", ALAPE VILLAGE, PADIL, MANGALURU - 575 007. …APPELLANT (BY SRI. SACHIN B.S, ADVOCATE) AND: K PUSHPARAJ SHETTY S/O LATE K NARAYANA SHETTY AGED ABOUT 49 YEARS RESIDING AT SHETTY COMPOUND, NEAR GARODDI, KANKANADY POST, MANGALURU - 575 002 …RESPONDENT (BY SRI. UDAYA PRAKASH M, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.03.2021 PASSED IN RA NO.258/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, AND CJM, MANGALURU D.K, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 13.11.2019 PASSED IN OS.NO.573/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MANGALURU D.K. Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29897 RSA No. 1941 of 2021 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Though the matter is listed for admission, Sri.Sachin B.S, learned counsel for the appellant during the course of arguments has filed a memo. The said memo reads as under: "The counsel for the Appellant submits that the claim of the Appellants may be Restricted to the decree of the plaintiff's claim and not on the counter claim of the Defendants. Hence, this memo in the interest of jUstice and equity." 2. Sri Udaya Prakash M, learned counsel for the respondent submits that if the appeal is restricted for decreeing of the suit of the respondent giving up the appeal for the counterclaim, suitable orders may be passed. 3. In the present appeal, what is challenged is the dismissal of the entire appeal filed by the appellant, who was the defendant before the trial Court, who has suffered - 3 - HC-KAR NC: 2025:KHC:29897 RSA No. 1941 of 2021 a composite decree whereby the suit of the plaintiff, who is the respondent before this Court and before the First Appellate Court was decreed and the counterclaim filed by the appellant, who was the defendant before the trial Court came to be rejected. 4. Since the composite decree came to be passed, it is the contention of the appellant that due to inadvertence, a common appeal came to be filed and the First Appellate Court was required to consider the appeal either for decreeing of the suit or dismissal of the counterclaim when the composite decree was passed and without affording such an opportunity, dismissing the entire appeal has resulted in miscarriage of justice. 5. Taking note of the fact that no such opportunity was granted to the appellant to restrict the appeal for either of the reliefs, namely challenging the decreeing of the suit of the plaintiff or dismissing the counterclaim of - 4 - HC-KAR NC: 2025:KHC:29897 RSA No. 1941 of 2021 the defendant, the dismissal of whole appeal has rendered as resulted in miscarriage of justice. 6. Hence, in view of the memo, without further considering the merits of the matter on the substantial questions of law, it is just and proper to set aside the order of the First Appellate Court and remit the matter to the First Appellate Court in restricting the appeal as to the challenge with regard to the decreeing of the suit of the plaintiff. 7. Accordingly, the following: ORDER i. Appeal is disposed of. ii. Parties shall appear before the First Appellate Court without further notice on 29.08.2025. Sd/- (V SRISHANANDA) JUDGE CH