Remanded

B.Krishnamurthy v. Venkatalakshmamma

Karnataka HC11 Aug 2023RSA/106/2023

Case brief

AI extract

What is this about?

The High Court allowed the second appeal filed under Section 100 of CPC. It held that the First Appellate Court erred by ignoring an application under Order 41, Rule 27 CPC for additional evidence. The judgment and decree were set aside and the matter remanded for fresh consideration within three months.

What did the court decide?

Impugned judgment and decree set aside; matter remanded to First Appellate Court to consider application under Order 41, Rule 27 CPC afresh.

B.Krishnamurthy Vs Venkatalakshmamma — Civil Procedure and Limitation | Karnataka HC (2023)

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1 - NC: 2023:KHC:28568 RSA No. 106 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 106 OF 2023 (DEC/INJ)

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BETWEEN:

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B. KRISHNAMURTHY S/O. S.V. BADRA SHETTY HINDU AGED ABOUT 67 YEARS NOW R/A NO.2, 5^TH CROSS KANAKAPURA MAIN ROAD NEAR MANJUNATHA CHOULTRY VAJARAHALLI TALAGHATTAPURA POST BANGALORE-560 062.

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…APPELLANT

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(BY SRI G. GANESH SHENOY.,ADVOCATE)

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AND:

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Digitally signed by SHARANYA T 1. VENKATALAKSHMAMMA Location: HIGH W/O. LATE H. RAMAKRISHNA COURT OF KARNATAKA HINDU AGED ABOUT 75 YEARS R/AT NO.26, 3^RD CROSS ROAD NEHRU NAGAR SARAKKI GATE BANGALORE-560 078.

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NARASAMMA W/O. S.M. RUDRAPPA HINDU, ADULT SINCE DIED DURING PENDENCY OF SUIT HER LRS WERE BROUGHI ON RECORD

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2 - NC: 2023:KHC:28568 RSA No. 106 of 2023

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PUSHPA

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W/O. B.V.D. VENKATAPPA AGED ABOUT 66 YEARS PRESENTLY R/AT NO.434/B 6^TH CROSS, 7^TH BLOCK JAYANAGAR WEST BANGALORE-560 070.

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R. PARIMALA W/O. D. LAKSHMINARAYANA AGED ABOUT 64 YEARS R/A 11/17, 2^ND FLOOR VENKATESHWARA NILAYA 1^ST CROSS, BENDRE NAGAR NEAR KADIRENAHALLI UNDER PASS BANGALORE-560 070.

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S.R. MANJUNATH S/O. S.M.R. UDRAPPA AGED ABOUT 60 YEARS

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S.R. JANARDHAN S/O. S.M. RUDRAPPA AGED ABOUT 57 YEARS

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R. RAMANATHAA S/O. LATE S.M. RUDRAPPA HINDU, ADULT

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RESPONDENT NOS.4, 5 & 6 ARE R/O.NO.9/11, 7^TH BLOCK JAYANAGAR, YEDIYUR BANGALORE-560 011.

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GOWRAMMA

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W/O. LATE S.M.HANUMANTHA SHETTY SINCE DECEASED DURING PENDENCY OF SUIT HER LRS ALREADY ON RECORD

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SAMPANGI RAMU S/O. LATE S.M. HANUMANTHA SHETTY HINDU, ADULT

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3 - NC: 2023:KHC:28568 RSA No. 106 of 2023

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R/O. NO.262/274 MAHADESWARA NAGAR VISWANEEDAM POST MAGADI MAIN ROAD BANGALORE-560 091.

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H. SHIVASHANKAR S/O. LATE S.M. HANUMANTHA SHETTY HINDU, ADULT R/O. SOMANAHALLI AND POST UTTARAHALLI HOBLI KANAKAPURA ROAD BANGALORE SOUTH TALUK.

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K.R. BADRINARAYANA S/O. K. RAMALINGAM SINCE DECEASED DURING PENDENCY OF SUIT HIS LRS WERE BROUGHT ON RECORD

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SABITHA NARAYAN W/O. LATE K.R. BADRINARAYANA HINDU, AGED ABOUT 57 YEARS

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TALLAM SMITHA KEDARANATH D/O. LATE K.R. BADIRNARAYANA HINDU, AGED ABOUT 34 YEARS

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RAGHAVENDRA K.B. HINDU, AGED ABOUT 31 YEARS

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RESPONDENT NOS.9 TO 11 ARE R/AT NO.31/1, N.H.S. ROAD V.V. PURAM BANGALORE-560 004

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…RESPONDENTS

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(BY SRI B.R.VISWANATH, ADVOCATE FOR C/R1; NOTICE TO R2 TO R11 IS DISPENSED WITH V/O. DT. 11.08.2023.)

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NC: 2023:KHC:28568 RSA No. 106 of 2023

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.10.2022 PASSED IN RA.NO.54/2021 ON THE FILE OF THE VII ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.03.2021 PASSED IN O.S.NO.1043/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for the respondents.

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Learned counsel for the appellant would vehemently

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contend that when an application was filed under Order 41, Rule 27 of CPC before the Trial Court praying the Court to receive additional documents contending that defendant Nos.1 to 3 and 7 have sold an extent of 1 acre, 20 guntas out of an extent of 3 acres in Sy.No.9/A to one Mrs. L.V. Jamuna (0.30 guntas as per sale deed at Ex-D20 and mutation extract at Ex.D24) and to one B.R. Sathya (0. 30 guntas as per sale deed

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NC: 2023:KHC:28568 RSA No. 106 of 2023

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dated 11.11.2005 – mutation extract at Ex.D23 and the same has not been considered.

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The learned counsel also brought to notice of this Court that the same is pleaded in ground (N) of the appeal memo and also in Page No.28 that the order has been passed erroneously without considering the additional evidence which have been placed before the First Appellate Court. The First Appellate Court has not even considered the said application filed under Order 41, Rule 27 of CPC along with relevant and material documents with a prayer to receive them as additional evidence and it has rendered its judgment without even considering the said application and the same has resulted in serious miscarriage of justice. Learned counsel would vehemently contend that the First Appellate Court proceeded to pass an order without considering the application whether those documents are necessary or not to decide the issue involved between the parties and proceeded erroneously and matter requires to be remanded.

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Per contra, learned counsel for the respondents

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would vehemently contend that the Trial Court having taken

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6 - NC: 2023:KHC:28568 RSA No. 106 of 2023

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note of the documents which have been produced before the Court, made an observation considering each and every documents and the documents are created and the same cannot be believed. Learned counsel also would vehemently contend that the matter has been considered in detail and the same is also discussed by the First Appellate Court while reappreciating both oral and documentary evidence placed on record. Hence, it does not require any remand.

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Having heard the learned counsel for the appellant and learned counsel for the respondents, admittedly, an application is filed under Order 41, Rule 27 of CPC before the First Appellate Court. The learned counsel for the respondents also submits that objection is also filed not to receive the additional documents and the said documents are not necessary to decide the appeal. But, on perusal of the entire order of the First Appellate Court, it is seen that while considering the appeal, no point for consideration is framed and only considered the grounds urged in the appeal in Para Nos.17 and 18 of the judgment of the First Appellate Court and nothing is discussed in the judgment with regard to the application filed for production of additional documents and the First Appellate

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NC: 2023:KHC:28568 RSA No. 106 of 2023

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Court ought to have framed a point for consideration whether the appellant has made out a ground to invoke Order 41, Rule 27 of CPC and whether those documents are necessary to decide the issue involved between the parties and no decision was taken on the application and no point for consideration is framed and nothing is discussed in the judgment referring production of additional documents and the First Appellate Court ought to have considered the same along with the appeal and the same has not been considered.

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When such being the case, it is appropriate to set aside the judgment and decree of the First Appellate Court and remand the matter for fresh consideration and consider the application filed by the appellant under Order 41, Rule 27 of CPC and take a decision whether those documents are necessary or not to decide the issue involved between the parties and consider the matter afresh along with the application filed under Order 41, Rule 27 of CPC while disposing of the appeals which are pending before the Court. Hence, the matter requires to be remanded.

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NC: 2023:KHC:28568 RSA No. 106 of 2023

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It is also important to note that suit is filed in the year 2005 and the same was disposed of on 30.03.2021 and the appeals are filed in the year 2021 and though the appeals which were pending are expeditiously disposed of in the year 2021 itself, but not considered the documents which have been produced before the First Appellate Court. Hence, it is appropriate to direct the First Appellate Court to consider the matter afresh along with the application within a time bound period of three months.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment and decree passed by the First Appellate Court in R.A.Nos.54/2021 and 55/2021 is set aside and the matter is remitted back to the First Appellate Court to consider the same afresh.

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(iii) The parties are directed to appear before the First Appellate Court on 11.09.2023 without expecting any notice from the First Appellate Court and the First Appellate Court is directed

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9 - NC: 2023:KHC:28568 RSA No. 106 of 2023

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to dispose of the same within a period of three months from 11.09.2023

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(iv) The respective counsels and their parties are directed to co-operate before the Trial Court to dispose off the matter within the time bound period as directed.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 56

B.Krishnamurthy v. Venkatalakshmamma

Case brief

What is this about?

What did the court decide?

B.Krishnamurthy v. Venkatalakshmamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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