SAVITHRAMMA Vs. MAMATHA

JUDGEMENT

(1.) There is a delay of 217 days in filing this appeal. I have heard the learned counsel for the appellants on the application filed and also on the merits of the case. Appellants are defendants 1(a) to 1(d) in O.S. No. 522/2000. Respondents 1 and 2 herein have filed the said suit seeking partition and separate possession against the appellants and several others. The said suit came to be dismissed on 22.08.2011 on the ground that there was a prior partition between the parties. Aggrieved by the said judgment and decree, the plaintiffs preferred R.A. No. 565/2011. Another person by name Ravikantha, purchaser of one of the suit schedule properties filed R.A. No. 671/2011. The lower appellate Court clubbed both the appeals and has disposed of the same by a common judgment dated 16.03.2012 remanding the matter for fresh consideration to the trial Court. Aggrieved by the order of remand, this miscellaneous second appeal is filed.

(2.) As can be seen from the order passed by the learned 2nd Additional District Judge, Mysore, the matter is remanded principally on the ground that certified copy of he compromise decree passed in R.S.A. No. 543/1965 dated 18.03.1967 was not produced by the plaintiff's before the trial Court. The lower appellate Court has accepted the reason assigned by the plaintiff's for their omission to produce this document as one occasioned due to inadvertent omission and not attributable to intentional omission or act of negligence on the part of the plaintiffs. The lower appellate Court has found that as this particular compromise decree had bearing on the issues involved in the suit an opportunity deserved to be granted to the plaintiff's to lead evidence with regard to this document. Accordingly, while allowing the appeal the lower appellate Court has remitted the matter for fresh consideration framing two issues on which the Court below has directed both the parties to lead further evidence. The lower appellate Court has given six months time from the date of receipt of the records to the trial Court to conclude the proceedings.

(3.) Upon hearing the learned counsel for the appellants, I find that there is no illegality let alone substantial question of law that falls for consideration to admit this appeal. Rights of the parties are to be determined after affording opportunity to both the parties to lead evidence on the issues framed. Appellants will have every right to participate in the proceedings and lead their evidence. In such circumstances, no interference is called for with the judgment and order passed by the lower appellate court remanding the matter. However, as rightly pointed out by the learned counsel for the appellants, having regard to the age of the litigants and the nature of the controversy raised, I find that the trial Court has to dispose of the suit expeditiously, at any rate within a period of six months from the date of receipt of a copy of this order. In the light of the order passed above, I.A. No. 1/2013 filed seeking condonation of delay of 217 days in filing this appeal does not merit favourable consideration. Hence, the same is dismissed.