Jettappa (Dead) by LRs. & Anr. Vs. Vasudev (Dead) by LRs. & Anr.
EmailAppeal: Civil Appeal No. 1798 of 2000
(Arising out of S.L.P. (C) No. 16899 of 1998)
(Arising out of S.L.P. (C) No. 16899 of 1998)
Petitioner: Jettappa (Dead) by LRs. & Anr.
Respondent: Vasudev (Dead) by LRs. & Anr.
Apeal: Civil Appeal No. 1798 of 2000
(Arising out of S.L.P. (C) No. 16899 of 1998)
(Arising out of S.L.P. (C) No. 16899 of 1998)
Judges: S.B. MAJMUDAR & Y.K. SABHARWAL, JJ.
Date of Judgment: Feb 28, 2000
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 100 – Second appeal – Suit decreed by courts below – Dismissed by High Court on alleged admission of plaintiff – Said admission infact contained in written statement. Held that High Court orders are set aside on this manifest error. RSA remanded for decision within ambits of Section 100.(Para 3)
JUDGEMENT:
ORDER
1. Leave granted.
2. We have heard learned counsel for the appellants and learned counsel for respondent No. 2. The heirs of deceased respondent No. 1 though served have not thought it fit to appear and contest the present proceedings.
3. In the second appeal learned Single Judge thought it fit to dismiss the suit of the appellant – plaintiffs which was decreed by both the courts below. The main prank of the reasoning of the learned Single Judge is that the plaintiffs in paragraph 7 of the plaint have themselves stated that Nagappa the paternal grand-father of the plaintiffs sold the suit house to his brother Rayappa. Therefore, at best, the plaintiffs can claim as rever-sioners of Rayappa. It was brought to our notice that paragraph 7 was of the written statement mentioned as aforesaid and not paragraph 7 of the plaint. Hence there was no admission of plain-tiffs on that score. For this apparent error itself, the decision rendered by the High Court on that basis is required to be set aside. Accordingly, this appeal is allowed. The judgment and order rendered by the learned Single Judge in R.S.A. No. 657 of 1993 are set aside. The main R.S.A. is remanded to the High Court for a fresh decision on merits keeping in view the limited juris-diction under Section 100 of the Code of Civil Procedure. We make it clear that we make no observations on the merits of the con-troversy between the parties. No costs.
1. Leave granted.
2. We have heard learned counsel for the appellants and learned counsel for respondent No. 2. The heirs of deceased respondent No. 1 though served have not thought it fit to appear and contest the present proceedings.
3. In the second appeal learned Single Judge thought it fit to dismiss the suit of the appellant – plaintiffs which was decreed by both the courts below. The main prank of the reasoning of the learned Single Judge is that the plaintiffs in paragraph 7 of the plaint have themselves stated that Nagappa the paternal grand-father of the plaintiffs sold the suit house to his brother Rayappa. Therefore, at best, the plaintiffs can claim as rever-sioners of Rayappa. It was brought to our notice that paragraph 7 was of the written statement mentioned as aforesaid and not paragraph 7 of the plaint. Hence there was no admission of plain-tiffs on that score. For this apparent error itself, the decision rendered by the High Court on that basis is required to be set aside. Accordingly, this appeal is allowed. The judgment and order rendered by the learned Single Judge in R.S.A. No. 657 of 1993 are set aside. The main R.S.A. is remanded to the High Court for a fresh decision on merits keeping in view the limited juris-diction under Section 100 of the Code of Civil Procedure. We make it clear that we make no observations on the merits of the con-troversy between the parties. No costs.
