Allowed

Ramesh S/O Goneppa Doddaputtannavar, v. Smt.Gangamma W/O Ramappa Samudri

Karnataka HC2 Dec 2022WP/101706/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an order dismissing an application for additional evidence. The Court held that Order 41 Rule 27 CPC applications must be considered at the final hearing stage along with merits, not interlocutorily.

What did the court decide?

The impugned order is set aside; the application is restored to file; the First Appellate Court is directed to consider the application with final arguments.

Ramesh S/O Goneppa Doddaputtannavar, Vs Smt.Gangamma W/O Ramappa… — Partition | Karnataka HC (2022)

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WP No. 101706 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2^ND DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 101706 OF 2016 (GM-CPC)

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BETWEEN:

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RAMESH S/O GONEPPA DODDAPUTTANNAVAR, SINCE DECEASED BY HIS LRS,

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1(a). SMT.CHANNAMMA W/O RAMESH DODDAPUTTANNAVAR @ TALAWAR, AGE: 34 YEARS, OCC: COOLIE,

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1(b) TEJESWINI

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D/O RAMESH DODDAPUTTANNAVAR @ TALAWAR,

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AGE: 15 YEARS, OCC: STUDENT, MINOR,

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REPRESENTED BY HER M/G NATURAL MOTHER PETITIONER NO.1(A) SMT.CHANNAMMA W/O RAMESH DODDAPUTTANNAVAR @ TALAWAR, AGE: 34 YEARS, OCC: COLLIE,

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1(c) KEERTHI

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D/O RAMESH DODDAPUTTANNAVAR TALAWAR

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AGE: 13 YEARS, OCC: STUDENT, MINOR, REPRESENTED BY HER M/G NATURAL MOTHER PETITIONER NO.1(A) SMT.CHANNAMMA W/O RAMESH DODDAPUTTANNAVAR @ TALAWAR, AGE: 34 YEARS, OCC: COLLIE,

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1(d) MUTTURAJ S/O RAMESH DODDAPUTTANNAVAR @ TALAWAR AGE: 9 YEARS, OCC: STUDENT, MINOR, REPRESENTED BY HER M/G NATURAL MOTHER PETITIONER NO.1(A) SMT.CHANNAMMA

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WP No. 101706 of 2016

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W/O RAMESH DODDAPUTTANNAVAR @ TALAWAR, AGE: 34 YEARS,OCC: COLLIE, 1(e) SREEYA D/O RAMESH DODDAPUTTANNAVAR @ TALAWAR, AGE: 7 YEARS, OCC: STUDENT, MINOR, REPRESENTED BY HER M/G NATURAL MOTHER PETITIONER NO.1(A) SMT.CHANNAMMA W/O RAMESH DODDAPUTTANNAVAR @ TALAWAR, AGE: 34 YEARS, OCC: COLLIE,

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ALL THE PETITIONERS ARE THE RESIDENTS OF MARUTI NAGAR, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.

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…PETITIONERS (BY MS.VINAYA KUPPELLUR FOR SRI. N R KUPPELUR, ADVOCATE)

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AND:

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SMT.GANGAMMA W/O RAMAPPA SAMUDRI, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: TELAGI, TQ: HARAPANAHALLI, DIST: DAVANAGERE, NOW AT TALAWAR ONI, RANEBENNUR.

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SMT.HANUMAVVA W/O FAKKIRAPPA CHANDALLI, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, R/O: TALAWAR ONI, RANEBENNUR, DIST. HAVERI

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SMT.RANGAMMA W/O HANUMANTHAPPA SHIVANNANAVAR, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, YARAGUNTE VILLAGE, TQ:DIST: DAVANAGERE.

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…RESPONDENTS

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(BY SRI.DEEPAK NAROJI FOR SRI. VINAY S. KOUJALAGI, ADVOCATE FOR R1 & R2; R1 – SERVED & UNREPRESENTED)

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WP No. 101706 of 2016

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:14.01.2016 ON I.A.NO.IV PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR IN R.A.NO.57/2013 AS PER ANNEXURE-'H'.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the following reliefs:

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i. To issue a writ in the nature of certiorari quashing the impugned order dated 14.01.2016 on IA No.IV passed by the Prl. Senior Civil Judge and JMFC, Ranebennur, in RA No.57/2013 as per Annexure-H.

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ii. To grant such other order or relief to which the petitioner may be found entitled to under the circumstances of the case in the interest of justice.

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The brief facts of the case are;

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2.1. O.S.No.380/2008 was filed for partition and separate possession, which came to be decreed. Challenging the same, Regular Appeal in R.A.No.57/2013 was filed by defendant No.1 therein.

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2.2. In the said appeal, during the pendency of the said appeal, the appellant Ramesh expired and his legal

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WP No. 101706 of 2016

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representatives are brought on record as appellants No.1(a) to 1(e).

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2.3. They filed an application under Order 41 Rule 27 of the Code of Civil Procedure, to bring on record certain additional evidence, more particularly the birth certificates which were necessary to establish the right of the parties.

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2.4. The First Appellate Court by way of the impugned order dated 14.01.2016, dismissed the said application holding that appellant had enough and more opportunity to produce the said document when the matter was pending before the trial Court. Not having produced the same, there is no reason to take the said document on record at the appellate stage.

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2.5. It is aggrieved by the same, the petitioner is before this Court.

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Miss.Vinaya Kuppelur, learned counsel for the petitioners would submit that the First Appellate Court has erred in

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WP No. 101706 of 2016

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considering the application under Order 41 Rule 27 of CPC at the interlocutory stage and not at final stage. The First Appellate Court ought to have considered the application along with merits of the matter since it is only then that First Appellate Court could have come to a finding if the documents are required or not. The consideration of the application in isolation has resulted in injustice being caused to the petitioners. As such, she submits that the impugned order is required to be set aside and a direction be issued to the First Appellate Court to consider the application at the time of hearing on the merits.

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Per contra, Sri.Deepak Naroji, learned counsel for respondent Nos.2 and 3 would submit that there is nothing wrong with the order which has been passed by the First Appellate Court inasmuch as the only issue was as regards whether the plaintiff was entitled to any share in the family properties she having born prior to the year 1956 and as such, the First Appellate Court being of the opinion that the documents which had been produced would not be relevant for the purpose of establishment of the right of the plaintiff,

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WP No. 101706 of 2016

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had rejected the application. He submits that irrespective of the said application, the aspect of law being decided by various judgements of this Court, the additional documents which have been produced by the defendant No.1 not being germane for the issue, has been rightly rejected by the First Appellate Court.

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Heard learned counsel for the petitioners and learned counsel for respondent Nos.2 and 3. Perused the papers.

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The short question that would arise for consideration is whether an application under Order 41 Rule 27 of CPC can be considered as interlocutory application as done with regard to several other interlocutory application or would it have to be considered at the time of final hearing.

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This Court in a catena of decisions has categorically held that an application under Order 41 Rule 27 of CPC production of additional evidence has to be taken for consideration along with the main arguments and not at the interlocutory stage. Hence, I am of the considered opinion

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that the procedure which has been followed by First Appellate Court is not proper.

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Though on merits this Court is not expressing any opinion as to whether the order is right or wrong on merits, it was for the Court to have heard the final arguments and thereafter consider the application for additional evidence and then determine if in the conspectus of arguments, whether additional evidence is required or not, if required the Court can either remand the matter for leading fresh evidence or could have directed the trial Court to record evidence and forward the evidence to itself so as to determine the issue in question. This procedure which has been laid down in a catena of decisions not having been followed by the First Appellate Court, I am of the considered opinion that the impugned order is required to be set aside.

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Hence ,I pass the following:

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ORDER

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i. The writ petition is allowed.

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WP No. 101706 of 2016

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ii. A certiorari is issued. Impugned order dated 14.01.2016 passed on I.A.No.4 by the Principal Senior Civil Judge and JMFC, Ranebennur in RA No.57/2013 at Annexure-H is set aside. I.A.No.4 is restored to the file.

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iii. The First Appellate Court is directed to consider the said application along with final arguments when advanced in the matter.

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iv. Since the suit is of the year 2008 and appeal is pending from the year 2013, the First Appellate Court is directed to dispose of the matter as expeditiously as possible.

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Sd/JUDGE

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GAB, SH from para 3 List No.: 1 Sl No.: 5

Ramesh S/O Goneppa Doddaputtannavar, v. Smt.Gangamma W/O Ramappa Samudri

Case brief

What is this about?

What did the court decide?

Ramesh S/O Goneppa Doddaputtannavar, v. Smt.Gangamma W/O Ramappa Samudri

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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