Allowed

Rama K Kunder S/O Late Kalu Madiwala v. P S Krishna Rao Since Deceased

Karnataka HC3 Jun 2013RSA/1074/2011

Case brief

AI extract

What is this about?

A regular second appeal challenging a judgment that confirmed a trial court decree in a suit for injunction. The appellant argued the first appellate court erred by not considering an application for additional evidence filed under Order XLI Rule 27 CPC. The Single Judge set aside the impugned judgment and decree.

What did the court decide?

impugned judgment and decree in R.A.No.31/2007 dated 21.4.2011 set aside and remitted to the First Appellate Court for fresh disposal after considering the application for additional evidence within 3

Rama K Kunder S/O Late Kalu Madiwala Vs P S… — Civil Procedure and Limitation | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 3^RD DAY OF JUNE 2013

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BEFORE

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THE HON’BLE MR.JUSTICE S. ABDUL NAZEER

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REGULAR SECOND APPEAL NO.1074/2011 (INJ).

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Between:

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Rama K. Kunder, S/o late Kalu Madiwala, Aged about 79 years, R/o Nadsal Village, Padubidri Post, Udupi Tq. & Dist. …. Appellant.

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(By Sri K. Chandrashekar, Adv.)

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And:

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1 P.S. Krishna Rao, Since deceased.

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2 P.S. Laxmi Narayana Rao, Since deceased.

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3 Smt. Padmavathi, Hindu, Aged bout 73 yaers.

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4 Smt. Sudritha, Aged about 53 years.

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5 Sri P. Srinivasa Rao, Aged about 51 years.

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6 Smt. Savitha, Aged about 46 years.

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7 Smt. Shoba, Aged about 44 years.

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8 Smt. Sampath, Aged about 43 years.

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9 Sri Niranjan Rao, Aged about 42 years. R3 is the widow and R4 to R9 are children of late P.S.Krishna Rao.

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10 Smt. Sharada, Aged about 74 years.

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11 Sri Ganesh Rao, Aged about 54 years. R10 is the widow and R11 is the son of late P.S.Laxmi Narayana Rao.

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All are r/a Balanna House, Nadsal Village, Padubidri Post, Udupi Tq. & Dist.574 111.…. Respondents.

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(By Sri Padubidri Mohan Rao, Adv. For R3 to R8, R9 to R11)

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This Regular Second Appeal is filed under Sec.100 of CPC against the judgment and decree dated 31/2007 dated 21.4.2011 on the file of the Prl. Senior Civil Judge, Udupi, etc.

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This Regular Second Appeal coming on for Further Hearing this day, the Court delivered the following:

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JUDGMENT

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This appeal is directed against the judgment and decree in R.A.No.31/2007 dated 21.4.2011 on the file of the Principal Senior Civil Judge, Udupi, whereby the judgment and decree in O.S.No.88/1997 dated 28.7.2007 on the file of the Principal Civil Judge (Jr.Dn.), Udupi has been confirmed.

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The appellant is the defendant in the suit and the respondents are the plaintiffs. For the sake of convenience, the parties are referred to by their respective ranking before the trial Court.

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The suit filed by the plaintiffs is for permanent injunction restraining the defendant from interfering with their possession and enjoyment of the property or in the alternative for possession of the suit schedule property. As noticed, the suit was decreed by the trial Court. During the pendency of the appeal, the defendant/appellant filed an application under Order 41 Rule 27 of the CPC seeking permission of the Court to adduce additional evidence. He has also produced a document along with the said application. The court below while disposing of the appeal has not considered the application.

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While admitting the appeal, this Court has framed the

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following substantial question of law:

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“Whether the judgment and decree of the

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lower appellate Court is sustainable without passing orders on I.A.VI under Order XLI Rule 27 CPC filed by the appellant before the lower court for additional evidence?”

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Learned Counsel for the appellant would contend that

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when the first Appellate Court has directed the application to be considered along with the main, it ought to have passed an order on

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the said application while disposing of the appeal. Since the said application has not been considered, the order of the first Appellate Court requires to be set aside.

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On the other hand, learned Counsel appearing for the

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respondents has sought to justify the impugned judgment and decree of the first Appellate Court.

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Having regard to the contentions urged, it is unnecessary

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to consider the other factual aspects except considering the submission of the learned Counsel for the appellant as to whether the application filed by the appellant before the first Appellate court should have been considered or not?

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It is well established that when an application seeking production of additional evidence is filed in an appeal, the Court has to consider the said application along with the main. There is no question of considering the application at an interim stage. In the instant case, the application was filed on 4.7.2008. Perusal of the impugned judgment and decree would show that the application has not been considered. In the circumstances, the order of the first Appellate Court requires to be set aside. The substantial question of law is answered accordingly. Consequently, the appeal is allowed. The impugned judgment and decree in R.A.No.31/2007 dated 21.4.2011 passed by the Principal Senior Civil Judge, Udupi is hereby set aside. The appeal is remitted back to the first

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Appellate Court for fresh disposal in accordance with law. The first Appellate Court is directed to consider the application while disposing of the appeal in accordance with law. All the contentions of the parties are kept open. The first Appellate Court is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this order. No costs.

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Sd/JUDGE.

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BMM/-

Rama K Kunder S/O Late Kalu Madiwala v. P S Krishna Rao Since Deceased

Case brief

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What did the court decide?

Rama K Kunder S/O Late Kalu Madiwala v. P S Krishna Rao Since Deceased

Case brief

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What did the court decide?

What the court decided

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