(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 21.08.2024 passed in R.A.no.45/2022 on the file of ii additional district and Sessions judge, Davanagere, dismissing the appeal and confirming the judgment and decree dated 03.08.2022 passed in o.s.no.12/2019 on the file of senior civil judge and JMFC, Channagiri.)

Oral Judgment:

1. Heard the learned counsel for the appellants and the learned counsel for the respondents.

2. The main argument canvassed by the learned counsel for the appellants before this Court is that when the matter was posted for final arguments before the First Appellate Court, I.A.No.2 was filed under Order 6 Rule 17 of CPC seeking for an amendment of the written statement and an opportunity was given to the respondents to file the objections and the respondents also filed the objection statement. The First Appellate Court heard the matter on I.A. and even though no argument was canvassed on the main appeal, posted the matter for further arguments on I.A. as well as reply arguments on main matter.  The learned counsel would vehemently contend that even though the matter was posted for judgment, for 7 to 8 months the judgment was not passed and hence, it appears that the First Appellate Court lost sight of the application filed under Order 6 Rule 17 of CPC and even while disposing of the  appeal  also,  not  considered  any  point  for consideration with regard to the amendment of pleadings in respect of the written statement.

3. This Court having heard the learned counsel, secured the records of the Trial Court as well as the First Appellate Court. On perusal of the order sheet of the First Appellate Court, I.A.No.2 was filed before the First Appellate Court on 23.03.2023 and also an opportunity was given to the respondents to file statement of objections and statement of objections was also filed. The First Appellate Court posted the matter for hearing the application i.e., I.A.No.2 and heard the arguments of the learned counsel for the appellants and at the instance of the respondents, the matter was adjourned for arguments on I.A.No.2.  That on 07.07.2023, the First Appellate Court posted the matter for arguments of the appellants on I.A.No.2 and for reply arguments on main matter. On perusal of the order sheet, it discloses that argument was not heard on main matter, but the First Appellate Court posted the matter for reply arguments on main matter and for arguments on I.A.No.2. On 12.10.2023, heard the reply arguments of the learned counsel for the appellants and the learned counsel for the respondents sought time for reply and hence, posted the matter for reply and heard the reply arguments of both sides along with memo with citation. On 03.11.2023, posted the matter for judgment and nothing is mentioned with regard to the pendency of I.A.No.2 and ultimately, the judgment was passed on 21.08.2024 almost after 9 months.

4. Having perused the judgment of the First Appellate Court, no point for consideration is framed with regard to I.A.No.2 filed under Order 6 Rule 17 of CPC.  Whether it is to be allowed or rejected, that is immaterial. But the First Appellate Court ought to have considered the application once heard the arguments on I.A.No.2 filed under Order 6 Rule 17 of CPC. The First Appellate Court proceeded to pass the judgment on main and dismissed the appeal.

5. Per contra, the learned counsel for the respondents brought to the notice of this Court that there is a discussion with regard to seeking of additional ground i.e., adverse possession is concerned and an observation is made in paragraph No.25, wherein it is held that even on this ground of plea, an adverse possession is not available to the defendants. But no pleading with regard to the adverse possession since I.A.No.2 was not considered by the First Appellate Court.

6. Having considered the material available on record, the First Appellate Court passed the judgment after 9 months and nowhere the order sheet reveals that the case is posted for any further arguments of the parties. When such being the case, without looking into the material on record for consideration of the second appeal, it is appropriate to set aside the judgment and decree of the First Appellate Court and remand the matter to the First Appellate Court to consider the application filed under Order 6 Rule 17 of CPC. The order sheet reveals that the case is posted for reply arguments on main matter, but not heard both the counsel on main appeal also. When such being the case, the matter requires to be considered afresh, either to consider the application filed under Order 6 Rule 17 of CPC independently or consider the application along with main appeal and pass orders on I.A. as well as main appeal by giving an opportunity to both the parties. Hence, the matter requires interference of this Court.

7.     In view of the discussions made above, I pass the following:

                  ORDER

                   (i)The second appeal is allowed.

                  (ii) The impugned judgment and decree of the First Appellate Court dated 21.08.2024 passed in R.A.No.45/2022, is set aside.

                  (iii) The matter is remitted back to the First Appellate Court for consideration of I.A.No.2 as well as main appeal afresh in view of the observations made by this Court and the same shall be disposed of within three months from 19.12.2025.

                  (iv) The parties are directed to appear before the First Appellate Court on 19.12.2025, without expecting any notice from the First Appellate Court.

                  (v) The respective parties and the counsel are directed to assist the First Appellate Court in disposal of the case within the time bound period as directed.

                  (vi) The Registry is directed to send the records of the Trial Court and the First Appellate Court forthwith to the First Appellate Court to enable the First Appellate Court to take up the matter without fail on 19.12.2025.