Allowed

Partharajeurs v. Savithrammanni

Karnataka HC6 Sept 2022RSA/565/2022

Case brief

AI extract

What is this about?

The High Court allowed a second appeal challenging an appellate court judgment where additional evidence was admitted but parties were not given a chance to lead it. The High Court held that denying this opportunity violated Order 41 Rule 28 CPC, violated the principles of fair trial, and set aside the impugned judgment to remit the matter.

What did the court decide?

The judgment and decree of the Appellate Court were set aside, and the matter was remitted to the Appellate Court to proceed under Order 41 Rule 28 of CPC with directions to record evidence within six

Partharajeurs Vs Savithrammanni — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.565 OF 2022 (DEC/POS)

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BETWEEN:

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PARTHARAJEURS

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S/O LATE RAMACHANDRAPPA URS AGED ABOUT 55 YEARS R/AT HONGANOOR VILLAGE AND POST KASABA HOBLI, CHANNAPATNA TALUK RAMANAGARA DISTRICT

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BYRAPPARAJAURS S/O LATE CHIKKAKADAPPARAJAURS AGED ABOUT 67 YEARS R/AT HONGANOOR VILLAGE AND POST KASABA HOBLI, CHANNAPATNA TALUK RAMANAGARA DISTRICT PIN CODE - 562160

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...APPELLANTS

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(BY SRI.UMESH MOOLIMANI, ADVOCATE)

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AND

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SAVITHRAMMANNI W/O LATE HUCHAPPARAJE URS AGED ABOUT 57 YEARS R/AT HONGANOOR VILLAGE AND POST KASABA HOBLI,

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CHANNAPATNA TALUK - 562 160 RAMANAGARA DISTRICT

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…..RESPONDENT

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(BY SRI.R.S.RAVI, SENIOR COUNSEL FOR SRI.RAJU S, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.03.2022 PASSED IN R.A.NO.52/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.08.2015 PASSED IN O.S.NO.25/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAPATNA AND ETC.

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THIS REGULAR SECOND APPEAL COMING ON FOR PART HEARD IN ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the defendants questioning the judgment and decree dated 14.03.2022 passed by the Appellate Court in R.A.No.52/2015 confirming the judgment and decree dated 14.08.2015 passed by the Principal Civil Judge and JMFC, Channapatna in O.S.No.25/2008.

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For the sake of brevity, the parties are referred

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as they are ranked before the Trial Court.

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The plaintiff has instituted a suit for declaration, possession and injunction and the said suit was decreed. The defendants feeling aggrieved by the judgment and decree of the Trial Court preferred an appeal before the Appellate Court in R.A.No.52/2015. An application was filed under Order 41 Rule 27 of CPC seeking leave of the Court to adduce additional evidence. The Appellate Court has allowed the application. If the additional evidence was allowed to be produced, then the next recourse that was available to the Appellate Court was either to take such evidence or in the alternate could have directed the Court from whose decree the appeal was preferred, to take such evidence and to send it to the Appellate Court. If additional evidence was allowed to be produced, then it was incumbent on the part of the Appellate court to allow the defendants to lead evidence to substantiate their claim equally the plaintiff was also entitled to refute these

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additional evidence either by examining the witnesses or leading further evidence to counter additional evidence.

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Since the Appellate Court has decided the case without affording opportunity to the defendants to corroborate the documentary evidence, the matter has to be admitted. Consequently, second appeal is admitted today. The substantial question of law framed by this Court is culled out as under;

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"Whether the Appellate Court having admitted the additional evidence produced by the defendant erred in not relegating the parties to lead additional evidence and therefore, the procedure adopted by the Appellate Court is in violation of Order 41 Rule 28 of CPC?"

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With the consent of both counsel, this matter is

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taken up for final hearing today.

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It is a trite law that the Appellate Court being a

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final fact finding authority has to decide the case on facts

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as well as law. When an application for adducing additional evidence is allowed, Court has two options, either to record evidence itself or it may direct Trial Court to take such evidence and forward the same to it and thereafter dispose of appeal on merits. In the present case on hand, no opportunity was afforded to party relying on additional evidence.

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Therefore, the procedure adopted by the

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Appellate Court runs contrary to the procedure laid down under the Civil Procedure Code more particularly, under Order 41 Rule 28 of CPC., On this sole count, the judgment and decree rendered by the Appellate Court suffers from serious infirmities. Therefore, the substantial question of law framed by this Court needs to be answered in the Affirmative.

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For the foregoing reasons, I pass the following;

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ORDER

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The Second Appeal is allowed .

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The judgment and decree of the Appellate Court dated 14.08.2015 passed in R.A.No.52/2015 is set-aside.

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The matter stands remitted back to the Appellate Court. It is open for the Appellate Court to proceed further in terms of Order 41 Rule 28 of CPC.,

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Since both parties are represented by their counsel, they are directed to appear before the Appellate court without awaiting any further notice from the Appellate Court. They are hereby directed to appear before the Appellate Court on 10.10.2022.

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The said suit is of the year 2008. Therefore, it is made clear that defendants, without seeking any adjournments, shall lead evidence to substantiate and incorporate additional evidence, which is sought to be

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produced before the Appellate Court. The Appellate Court shall decide the case within a period of six months.

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Sd/JUDGE

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NBM

Partharajeurs v. Savithrammanni

Case brief

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Partharajeurs v. Savithrammanni

Case brief

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