Defendants in a specific performance suit challenged reversal of dismissal of the plaintiff's suit by the first appellate Court. The High Court found the appellate finding perverse as it lacked independent re-appreciation of evidence, and held rejection of additional evidence under Order 41 Rule 27 CPC contrary to law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1161 OF 2009 (SP)
BETWEEN:
BOTH ARE R/AT HUSKUR VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPUR TQ.
…APPELLANTS
(BY SRI ABHINAY Y.T., ADV. FOR SYED IMRAN, ADVOCATE)
AND:
Digitally signed by ANUSHA V Location: High Court Of Karnataka
…RESPONDENTS
[BY SRI PHANI RAJ KASHYAP, ADV. FOR R1; R2(a), R2(d), R2(e); V/O DTD 15.12.2022 R2(c), R2(b) (i TO iii) ARE HELD SUFFICIENT BY WAY OF PAPER PUBLICATION]
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED 02.06.2009 PASSED IN R.A.NO.165/2007 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 29.10.2007 PASSED IN OS.NO.417/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), DODDABALLAPUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 02.06.2009 passed by Prl. District Judge, Bengaluru Rural District, Bengaluru, in R.A.no.165/2007, this appeal is filed.
NC: 2024:KHC:52368 RSA No. 1161 of 2009
suit property. When defendant no.1 did not come forward to execute sale deed inspite of repeated requests, plaintiff got issued legal notice on 27.09.2002 stating that she was ready and willing to perform her part of contract and calling upon defendant no.1 to execute sale deed. But, defendant no.1 failed to comply. In meanwhile, defendant no.1 had executed registered sale deed in favour of defendants no.2 and 3 in respect of portions of suit property under two separate sale deeds. Hence, arraying them as defendants, suit was filed.
statement admitting plaint averments and conceding for decreeing suit.
NC: 2024:KHC:52368 RSA No. 1161 of 2009
pursuance of same, defendant no.1 executed two separate registered sale deeds on 19.06.2002 and 11.09.2002 respectively in favour of defendants no.2 and 3 by selling suit property in respective portions to them. They stated that possession was delivered to them at time of execution of sale. Therefore, plaintiff was not entitled for any relief.
Holder (son) and three others as PWs 1 to 4 and got marked
NC: 2024:KHC:52368 RSA No. 1161 of 2009
Exhibits P.1 to 11. Defendant no.3 examined himself and five others as DWs 1 to 6 and got marked Exhibits D1 to D.6. Defendant no.1 was examined as DW.7.
affirmative, points no.2 and 3 in negative and point no.4 by allowing appeal, decreeing suit. Aggrieved, defendants no.2 and 3 have filed this appeal.
NC: 2024:KHC:52368 RSA No. 1161 of 2009
NC: 2024:KHC:52368 RSA No. 1161 of 2009
application. Therefore, learned counsel sought for answering both substantial questions of law in favour of defendants and allow appeal.
1. Whether appreciation of evidence by the appellate Court is perverse?
NC: 2024:KHC:52368 RSA No. 1161 of 2009
agreements with regard to suit property with any one else earlier and would not deal with it thereafter, he found out, defendant no.1 had cheated him and on 29.05.2002, he knew defendant no.1 had transacted with third party. However, execution of agreement dated 29.05.2002 was proceeded with by placing trust on defendant no.1. He also admitted defendants no.2 and 3 had lodged complaint with police against him alleging interference with possession of suit property, on 5-6 occasions and he had in turn lodged complaint against defendant no.1 for executing agreement of sale by deceit. PW.2, an independent witness deposed that he had convened a panchayat and advised defendants to execute registered sale deed. He also claimed to be attestor of Ex.P.1. While denying knowledge of earlier transaction between defendant no.1 and defendants no.2 and 3, he admits plaintiff was on good terms with defendant no.1. He also stated that he witnessed payment of entire sale consideration and delivery of possession to plaintiff. Though, PW.3 deposes similar to PW.2, he admits that there was no convening of panchayat.
NC: 2024:KHC:52368 RSA No. 1161 of 2009
He stated that no negotiation was held in his presence and stamp paper was purchased on same day.
NC: 2024:KHC:52368 RSA No. 1161 of 2009
elicited to discredit Ex.D1 - Agreement of sale and Exs.D2 and
D3 - sale deeds, despite extensive cross-examination.
while answering point no.1 is as follows:
"16. Point no.1 : Positive case of the plaintiff is that she has entered into an agreement of sale with defendant no.1 is admitted by defendant no.1. Defendant no.1-owner has also entered the witness box. Except for series of suggestions, nothing is elicited in regard to the claim of the plaintiff being false. Claim of the plaintiff is supported with the recitals in Ex.P1. Ex.P1 supports the case of the plaintiff of plaint schedule property being agreed to be sold for a sum of Rs.90,000/- and the same was being paid to defendant no.1. So, Ex.P1 relied by the plaintiff is proved. So, point no.1 is answered in affirmative."
reversed finding of trial Court, but without any independent re-
NC: 2024:KHC:52368 RSA No. 1161 of 2009
appreciation of evidence on record or traversing reasoning of trial Court. Same would not be in confirmative with ratio in Santosh Hazari v. Purushottam Tiwari reported in 2001 (3) SCC 179. As such, said finding would be perverse.
“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy
to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”
28. Same view is re-iterated in Sanjay Kumar Singh
v. State of Jharkhand , reported in (2022) 7 SCC 247 :
"7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature."
NC: 2024:KHC:52368 RSA No. 1161 of 2009
ORDER
(i) Appeal is allowed with cost; Impugned judgment and decree dated 02.06.2009 passed by Prl. District Judge, Bengaluru Rural District, Bengaluru, in R.A.no.165/2007, is set aside; Matter is remanded back to first appellate Court;
(ii) I.A.no.4 filed by appellants (original defendants no.2 and 3) before first appellate Court is allowed ;
(vii) First appellate Court shall thereafter fixed specific time line for each stage and dispose of appeal afresh within outer limit of six months after giving opportunity to both parties.
Sd/(RAVI V HOSMANI) JUDGE
Psg*/AV
List No.: 1 Sl No.: 44
2 issues framed by the court
Whether the first appellate Court's appreciation of evidence reversing the trial Court's finding was perverse for lack of independent re-appreciation?
Whether the first appellate Court erred in rejecting the application under Order 41 Rule 27 CPC to lead additional evidence?
Colour shows how this judgement treated each authority
Rajesh Kumar v. Anand Kumar and OthersRelied on
2024 SCC OnLine SC 981 · Who else cites this
Santosh Hazari v. Purushottam TiwariRelied on
2001 (3) SCC 179 · Who else cites this
Union of India v. Ibrahim UddinRelied on¶27
(2012) 8 SCC 148 · Who else cites this
Sanjay Kumar Singh v. State of JharkhandRelied on¶28
(2022) 7 SCC 247 · Who else cites this
Sri Anjanappa v. Sri Narayanachar and OthersRelied on
RSA No.2000/2015, D.D. 01.10.2024
2 provisions across 1 enactments
Sri Manjunath
Sri Gangadarappa
Smt. Hanumakka
Sri Narasimhaiah (since deceased, by LRs)
Smt. Narayanamma
Lrs of Sri Gangaraju (Rathnamma, Harshitha, Gagan)
Ravi V Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
