Dismissed

B S Venkatakrishna Urs v. Smt Gayathri

Karnataka HC22 Aug 2024RSA/1530/2016

Case brief

AI extract

What is this about?

In a regular second appeal concerning a permanent injunction, the High Court of Karnataka dismissed the appeal. Addressing framed substantial questions of law, the Court examined the admissibility of additional evidence applications filed post-reservation and held they were not considered jointly with the appeal. The Court found no perversity and confirmed the lower courts' finding against the app

What did the court decide?

The regular second appeal is dismissed; the judgment and decree of the Courts below are confirmed.

B S Venkatakrishna Urs Vs Smt Gayathri — Contract and Commercial Disputes | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 22^ND DAY OF AUGUST, 2024 BEFORE

¶4

THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO.1530 OF 2016 (INJ)

¶5

BETWEEN:

¶6

B.S. VENKATAKRISHNA URS, AGED ABOUT 70 YEARS, S/O. LATE M.P. SUBRAMANYA RAJE URS, RESIDING AT DOOR NO.1822, N-3/1, T.N. PURA ROAD, MYSURU – 570011. ... APPELLANT

¶7

(BY SRI KRISHNAMURTHY G. HASYAGAR, ADVOCATE)

¶8

AND:

¶9

Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

¶10

SMT. GAYATHRI, AGED ABOUT 46 YEARS, D/O. LATE M.N. MANOHAR KUMAR, R/AT SY.NO.191/1, KYATHAMARANAHALLI, NEAR GIRIYABOVIPALYA, T.N. PURA ROAD, MYSURU – 570 011.

¶11

SMT. MALINI, AGED ABOUT 62 YEARS, D/O. M.V. NAGAPPA, C/O. M.N. MANOHAR KUMAR, R/AT DOOR NO.124, BUDHA MARGA, SIDDARTHA LAYOUT, MYSURU – 570 011. ... RESPONDENTS

¶12

(BY SRI CHIDANANDA P., ADVOCATE FOR C/R-2; R-1 – NOTICE SERVED & UNREPRESENTED)

¶13

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2016 PASSED IN R.A.NO.59/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE

¶14

2 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶15

JUDGMENT AND DECREE DATED 09.03.2012 PASSED IN OS NO.316/2004 ON THE FILE OF THE PRL. FIRST CIVIL JUDGE AND JMFC., MYSORE.

¶16

THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶17

CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

¶18

ORAL JUDGMENT

¶19

The plaintiff is before this Court assailing the concurrent findings of facts recorded by the Courts below.

¶20

The appeal is admitted by this Court on

¶21

21.02.2019 by framing the following substantial questions of law:

¶22

“1. Whether the impugned judgment of the first appellate court is vitiated for non-consideration of the applications of the appellant for adducing additional evidence at hearing of the appeal on merits?

¶23

2. Whether the impugned judgment and decree of the courts below suffer perversity?”

¶24

Learned counsel for the appellant and learned

¶25

counsel appearing for the respondents have been heard on the substantial question of law framed by this Court.

¶26

3 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶27

The main contention of the learned counsel

¶28

appearing for the appellant is that four applications were filed by the appellant seeking production of additional documents, out of four applications, three applications have been rejected by the Appellate Court, i.e., I.A.No.III was rejected on 04.11.2015 and I.A.Nos.V and VI were rejected on 22.02.2016. Learned counsel for the appellant submits that I.A.Nos.III, V and VI filed by the appellant under Section XLI Rule 27 CPC was not considered at the time of final hearing and in support of his contention, learned counsel placed reliance on the decision of the Apex

¶29

Court in the case of State of Rajasthan Vs. T.N. Sahani and others¹ (T.N. Sahani) , Union of India Vs. Ibrahim Uddin and another² (Ibrahim Uddin) and Malayalam Plantations Ltd., Vs. State of Kerala and another³ (Malayalam Plantations) and submits that the substantial questions of law framed by this Court needs to be answered in favour of the appellant.

¶30

1 (2001) 10 SCC 619

¶31

2 (2012) 8 SCC 148

¶32

3 Civil Appeal No.309/2003

¶33

¶34

NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶35

Per contra , learned counsel appearing for the respondents submits that the applications filed by the appellant was after the appeal was reserved for judgment. Taking to the order sheet, learned counsel submits that arguments were heard on 03.09.2015 and the matter was posted for judgment on 21.09.2015, 05.10.2015 and 03.11.2015. The appellant had filed applicationsI.A.Nos.III and IV on 01.10.2013 and 16.10.2014 under Order XLI Rule 27 of CPC and I.A. No.III filed by the appellant was dismissed on 04.11.2015 itself, however, I.A.No.IV filed by the appellant under Order XLI Rule 27 was allowed and the evidence was let in by the plaintiff insofar I.A.No.IV is concerned. Subsequently, again two applications-I.A.Nos.V and VI were filed under Section 151 CPC seeking to produce the additional documents and to lead evidence on 08.02.2016 and the said applications were dismissed. Learned counsel emphasizes that the applications were filed after hearing of the appeal, and Order XLI Rule 27 does not postulate that after the judgment has been reserved, the appellant can be

¶36

5 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶37

permitted to file applications and now contend that the applications filed by them have to be heard along with the main appeal, stating these grounds, learned counsel submits that the substantial questions of law framed by this Court need to be answered against the appellant.

¶38

The settled proposition of law is that when an application is filed under Order XLI Rule 27 CPC before the Appellate Court, the Appellate Court has to consider the said application at the time of hearing of the appeal on merits and ascertain whether the documents which are sought to be produced as additional evidence needs to be looked into to pronounce its judgment in a satisfactory manner and it is for that applications under Order 41 Rule 27 have to be heard and decided along with the main appeal. The Apex Court in the case of T.N. Sahani has observed that the applications under Order 41 Rule 27 should have been decided along with the appeal , and at paragraph No.4 held as under:

¶39

¶40

NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶41

“4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy [AIR 1963 SC 1526] pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the

¶42

¶43

NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶44

application and decide the matter afresh in accordance with law.”

¶45

(emphasis supplied)

¶46

The Apex Court in the case of Ibrahim Uddin

¶47

has held at paragraph Nos.36 to 42, 49 and 52 has under:

¶48

“Order 41 Rule 27 CPC

¶49

36. 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. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. of Greater Bombay v. Lala Pancham, Soonda Ram v.

¶50

8 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶51

Rameshwarlal and Syed Abdul Khader v. Rami Reddy.

¶52

37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.)

¶53

38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate

¶54

¶55

NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶56

court is empowered to admit additional evidence. (Vide Lala Pancham.)

¶57

39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the nonproduction of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam.)

¶58

40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

¶59

10 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶60

41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.

¶61

42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.

¶62

51. In Arjan Singh v. Kartar Singh this Court held : (AIR pp. 195-96, paras 7-8)

¶63

11 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶64

“7. … If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. …

¶65

8. … The order allowing the appellant to call the additional evidence is dated 17-8-1942. The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment.”

¶66

(emphasis added)

¶67

52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a

¶68

12 - NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶69

product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.”

¶70

8. The Apex Court observed that when an

¶71

application under Order 41 Rule 27 is filed, it is to be considered at the time of hearing of appeal on merits so that the Court / Appellate Court can find out whether the documents or evidence sought to be adduced have any relevance bearing on the issues involved.

¶72

9. In the instant case, the additional evidence

¶73

which has been sought to be produced on record has been considered and allowed after hearing of the appeal, and the order passed on the application is after the total consideration and application of mind by the First Appellate Court and thus, the appellant now cannot contend that the evidence sought to be produced were required to be taken on record to pronounce the judgment

¶74

as in the instant case, the matter was heard on

¶75

13 -

¶76

NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶77

03.09.2015 and posted for judgment on 21.09.2015 itself and the applications were filed much later i.e., on 04.11.2015 and 22.02.2016 as is evident from the order sheet. Thus, the contention of the appellant that the applications ought to have been heard along with the main would not be available to the appellant in light of the facts narrated supra.

¶78

It is also pertinent to note that the present suit is for permanent injunction and the appellant has already filed comprehensive suit in O.S.No.1550/2006, the Trial Court on considering the entire material on record have rightly assessed and arrived at a conclusion that the plaintiff is not entitled for permanent injunction and dismissed the suit, the First Appellate Court being the last fact-finding Court has re-appreciated and re-considered the entire oral and documentary evidence and the same does not warrant any interference and the substantial questions of law framed by this Court are answered against the appellant and this Court pass the following:

¶79

NC: 2024:KHC:33932 RSA No. 1530 of 2016

¶80