LAWS(KAR)-2015-1-453

H.N. KRISHNAMURTHACHAR Vs. H.S. RAMANAYAKA AND ORS.

Decided On January 12, 2015
H.N. Krishnamurthachar Appellant
V/S
H.S. Ramanayaka And Ors. Respondents

JUDGEMENT

(1.) THESE appeals are filed challenging the judgment and decree dated 26.4.2014 passed by the Court of Senior Civil Judge & JMFC, K.R. Nagar in R.A. 31/2012.

(2.) SUITS bearing O.S. 305/2005 and 306/2005 pending on the file of Court of Civil Judge & JMFC, Krishnarajanagar had been filed by H.N. Krishnamurthachar seeking the reliefs of declaration of title and permanent injunction against H.R. Ramanaika, who is common defendant in these suits. Suits were decreed on 12.6.2012, as against which, an appeal came to be filed in R.A. 31/2011. The learned Judge of the First Appellate Court has allowed the said appeals and remanded the matters to the Trial Court to frame necessary issues and to appoint fresh court commissioner to inspect and submit a report and thereafter to allow the parties to lead further evidence, if necessary and to dispose of the suit in accordance with law. After hearing the learned counsel for the parties, following substantial question of law is framed:

(3.) THE learned Judge of the First Appellate Court has come to the conclusion that appointing of Court Commissioner is required and parties need to lead further evidence. The First Appellate Court is a Court, which has all the trapping of a Civil Court dealing with the original suits and it can record additional evidence under Order 41 Rule 27 of CPC by itself or can get it recorded under Order 41 Rule 28 of CPC by sending the matter to the Trial Court and then the Trial Court to give its finding.