Allowed

Sri Mohan Poojary v. Sri Harish Kini

Karnataka HC13 Jul 2023RSA/1777/2016

Case brief

AI extract

What is this about?

In this second appeal, the High Court set aside the First Appellate Court's order allowing an application for additional evidence under Order 41 Rule 27 read with Section 151 of CPC. The Court remanded the matter to the First Appellate Court for fresh consideration and hearing.

What did the court decide?

The Regular Second Appeal was allowed. The order dated 08.07.2016 on I.A.No.3 and the judgment and decree of the First Appellate Court dated 08.07.2016 were set aside. The matter was remanded to the F

Sri Mohan Poojary Vs Sri Harish Kini — Civil Procedure and Limitation | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF JULY, 2023

¶4

BEFORE

¶5

THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.1777 OF 2016 (INJ)

¶6

BETWEEN:

¶7

SRI. MOHAN POOJARY AGED ABOUT 68 YEARS, S/O KUDUPA POOJARY, NAGARAKATTE, MARPADY VILLAGE, MOODBIDRI, MANGALORE TALUK, D.K. DISTRICT - 574 227.

¶8

…APPELLANT

¶9

(BY SRI. K.CHANDRANATH ARIGA., ADVOCATE)

¶10

AND:

¶11

Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

¶12

SRI. HARISH KINI AGED ABOUT 70 YEARS, S/O DEVARAYA KINI, NAGARAKATTE, MARPADY VILLAGE, MOODABIDRI - 574 227. MANGALORE TALUK, D.K.

¶13

…RESPONDENT

¶14

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.

¶15

THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶16

JUDGMENT

¶17

Sri.K.Chandranath Ariga., learned counsel for the

¶18

appellant has appeared in person.

¶19

¶20

NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶21

This is an appeal from the Court of Itinerate Senior Civil Judge, Moodbidre.

¶22

For the sake of convenience, the status of the parties shall be referred to as per their ranking before the Trial Court.

¶23

The plaintiff filed a suit seeking the relief of a permanent injunction against the defendant in respect of the suit schedule property in O.S.No.82/2006 on the file of Civil Judge (Jr.Dn) and JMFC, Moodabidri. The defendant also filed a counterclaim. On the trial of the action, the Trial Court vide Judgment & Decree dated:26.10.2009 decreed the suit of the plaintiff, and the defendant was restrained from interfering with the plaintiff's peaceful possession and enjoyment over the plaint 'B' schedule property and dismissed the counterclaim. Aggrieved by the Judgment & Decree of the Trial Court, the defendant preferred an appeal before the First Appellate Court in R.A.No.117/2015 on the file of Itinerate Senior Civil Judge, Moodbidre.

¶24

During the pendency of the appeal, the defendant moved an application in I.A.No.3 under Order 41 Rule 27 R/w Section

¶25

¶26

NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶27

151 of CPC and sought permission to produce additional documents. The First Appellate Court framed points for consideration; the fifth point is about producing additional documents. The First Appellate Court answered the point for consideration in the Affirmative, disposed of the appeal on 08.07.2016 and dismissed the plaintiff's suit, and decreed the defendant's counterclaim. The First Appellate Court also allowed the application under Order 41 Rule 27 R/w Section 151 of CPC on the very same day. Hence, this second appeal is filed by the plaintiff on several grounds as set out in the Memorandum of Appeal.

¶28

Learned counsel for the appellant has urged several contentions. Heard, the contentions urged on behalf of the appellant and perused the records with utmost care.

¶29

The issue revolves around the filing of an application to produce additional evidence under Order 41 Rule 27 of CPC and the disposal of the appeal.

¶30

Sri.K.Chandranath Ariga., learned counsel for the appellant in presenting his argument strenuously urged that the defendant moved an application under Order 41 Rule 27 R/w

¶31

4 - NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶32

Section 151 of CPC to produce additional documents. He sought to produce certain documents viz., RTC extract, certified copy of assignment order, survey sketch, registered release deed, and sketch with measurement of properties to show that he is in possession of the suit schedule property. He argued by saying that the plaintiff filed detailed objections to the said application. Learned counsel contended that the Appellate Court has not adhered to the relevant provisions of the Code of Civil Procedure. Learned counsel drew the attention of the Court to the decision of SUGAPPA AND ANOTHER Vs. SHIVASHANKERAPPA AND OTHERS reported in ILR 2015 KAR 4851.

¶33

Under Rule 27 of Order 41, production of additional evidence, whether oral or documentary is permitted only under three circumstances which are: 1) the trial Court had refused to admit the evidence though it ought to have been admitted 2) the evidence was not available to the party, despite the exercise of due diligence; and 3) the Appellate Court required additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.

¶34

¶35

NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶36

The true test is whether the Appellate Court can pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. When the Appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence.

¶37

The law is well settled that the production and leading evidence in the Appellate Court, oral or documentary, is not a matter of right, or ipso facto. Needless to say, the parties can produce evidence only when the conditions laid down in Rule 27 are satisfied.

¶38

I have carefully perused the Judgment passed by the First Appellate Court in R.A.No.117/2015. A perusal of the same would reveal that the First Appellate Court allowed the application I.A.No.3 filed under Order 41 Rule 27 R/w Section 151 of CPC on 08.07.2016 and on the very same day, the Appellate Court went ahead and disposed of the appeal also. In my view, the procedure adopted by the Appellate Court is not in consonance with the conditions enumerated under Order 41 Rule 27 of CPC. What is required to be considered by the

¶39

¶40

NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶41

Appellate court is that whether the defendant has proved that despite the exercise of due diligence, the evidence was not available to the party.

¶42

I may venture to say that the First Appellate Court has failed to have regard to relevant considerations and disregarded relevant matters.

¶43

In my considered opinion, the order passed by the First Appellate Court is unsustainable in law. Hence, the order passed on I.A.No.3 and the judgment and decree passed by the First Appellate Court are liable to the set-aside. In my view, the matter requires a remand. therefore, the matter is remitted to

¶44

the First Appellate Court. The First Appellate Court is hereby directed to consider and hear the application I.A.No.3 filed under Order 41 Rule 27 R/w Section 151 of CPC afresh and pass appropriate orders.

¶45

The substantial questions of law are answered accordingly.

¶46

As a result, the appeal deserves to be allowed. The order dated:08.07.2016 passed on I.A.No.3 filed by the defendant under Order 41 Rule 27 R/w Section 151 of CPC is

¶47

NC: 2023:KHC:24401 RSA No. 1777 of 2016

¶48

¶49

set aside. Consequently, the Judgment & Decree dated 08.07.2016 passed by the First Appellate Court is also set aside.

¶50

Resultantly, the Regular Second Appeal is allowed .

¶51

Sd/JUDGE

¶52

TKN List No.: 1 Sl No.: 67

Sri Mohan Poojary v. Sri Harish Kini

Case brief

What is this about?

What did the court decide?

Sri Mohan Poojary v. Sri Harish Kini

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Chief Secretary Vs Sri M M Chandrappa

Sri Seetharama Shetty Vs Smt Lakshmi

Sri J B Fakeer Sab Vs Smt Zahira Khasim

Smt a Ravikala Vs Mr Jagadish Kottari

Smt Uma Devi Vs Sri K M Bachegowda

Nagaramari Vs Nagannachar