PARVATHAMMA Vs. DEVAMMA

JUDGEMENT

(1.) The present appeal is filed by the unsuccessful plaintiff who lost the case in both the courts. However, this court has to set aside the order of the Courts below purely on technical grounds. Appellant instituted a suit in OS No. 365/2007 for mandatory injunction to prevent the defendant from removing unauthorised constructions put up on B sp and also for permanent injunction. The said suit came to be dismissed by the Civil Judge (Jr. Dvn.), Shimoga. Aggrieved by the said judgment and decree passed in OS No. 365/2007, appellant filed an appeal In RA No. 95/2008 before the Civil Judge (Sr. Dvn.), Shimoga. The appeal also came to be dismissed on merits by the learned Appellate Judge.

(2.) But unfortunately the learned Appellate Judge has disposed of the appeal on merits on her own, even the appellant as well as the respondent's counsel did not address the arguments. Para-8 of the judgment of the learned Appellate Judge reads as under:

(3.) It is needless to say that if appellant's counsel had failed to address the arguments, the Appellate Court has to follow the provisions of Order 41 Rule 17 of CPC, which reads as hereunder: