Second appeal by defendants against concurrent decrees for declaration and permanent injunction. The High Court found the First Appellate Court failed to consider the defendants' Order XLI Rule 27 CPC application for additional evidence and remitted the appeal for fresh decision.
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.
NC: 2017:KHC-D:8829 RSA No. 5028 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.5028 OF 2013 (DEC)
BETWEEN:
SINCE DECEASED BY HER LEAL HEIRS,
Digitally signed by VISHAL VISHAL NINGAPPA NINGAPPA PATTIHAL PATTIHAL Date: 2024.12.20 10:06:19 +0530
(BY SMT. PADMAJA TADAPATRI, ADVOCATE FOR SRI. K.L.PATIL, ADVOCATE)
AND:
1A. SMT. KALAVATI W/O. SUBHAS REDDY BHOMAKKANAVAR, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O. ASUNDI, TQ. GADAG-582103.
NC: 2017:KHC-D:8829 RSA No. 5028 of 2013
AGE: 51 YEARS, OCC. HOUSEHOLD WORK, R/O. ASUNDI, TQ. GADAG-582103.
… RESPONDENTS
(BY SRI. C.S. SHETTAR, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 14.09.2012 PASSED IN R.A.NO.41/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AT GADAG, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT DATED 30.08.2007 AND THE DECREE PASSED IN O.S. NO.121/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & CJM, GADAG, DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
NC: 2017:KHC-D:8829 RSA No. 5028 of 2013
ORAL JUDGMENT
The present regular second appeal is preferred by the defendants assailing the judgment and decree in RA No.41/2008 dated 14.09.2012 on the file of the Fast Track, Gadag, (hereinafter referred to as ‘First Appellate Court’ for short) confirming the judgment and decree in OS No.121/2004 dated 30.08.2007 on the final of the Civil Judge (Sr.Dn) and CJM, Gadag, (hereinafter referred to as ‘trial Court’ for short).
Appellate Court came to be dismissed, while dismissing the appeal, I.A.No.III filed by the appellants under Order
XLI Rule 27 read with Section 151 of CPC was not considered in the final order. Assailing the judgment and decree, this regular second appeal has been preferred by the defendants.
17.12.2024 to consider the following substantial questions of law.
“Whether the judgment and decree of the First Appellate Court warrants interference in light of not passing any order on IA No.III dated 07.01.2010 filed under Order XLI Rule 27 of CPC?”
learned counsel appearing for the appellants and learned counsel Sri. C.S.Shetter learned counsel for the respondents.
Appellate Court was justified in not considering the application filed under Order XLI Rule 27 of CPC at the time of deciding of the appeal. Without adverting to the rival contentions recorded by the Courts below, the appeal is liable to be allowed on sole ground by answering the substantial question of law holding that the First Appellate Court was not justified in considering the matter on merits without passing any orders on the application filed by the appellant under Order XLI Rule 27 of CPC.
& another (Minor Through Mother) Vs. Mehar Singh
and others1 has held at paragraph No.4 as under:
“While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits.
1 AIR 2009 SC 354
That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.”
The Apex Court held that when an application is filed seeking for additional evidence under Order XLI Rule 27 of CPC, it was the duty of the Court to consider the same on merits along with the appeal.
non-consideration by the First Appellate Court while disposing the appeal, this Court is of the considered view that the First Appellate Court shall decide the appeal
afresh on merits in accordance with law along with the application for additional evidence. Accordingly, the impugned order of the First Appellate Court needs to be set aside and the matter requires to be remitted back to the First Appellate Court as the same is unsustainable for non-consideration of an application filed for additional evidence by the appellants. In the result, the substantial question of law is answered accordingly and this Court pass the following order:
ORDER
SD/-
(JUSTICE K.S.HEMALEKHA)
PJ/ CT:PA LIST NO.: 1 SL NO.: 21
1 issue framed by the court
Whether the First Appellate Court erred in deciding the appeal without passing any order on the application under Order XLI Rule 27 CPC for additional evidence?
Colour shows how this judgement treated each authority
Jatinder Singh & another (Minor Through Mother) Vs. Mehar Singh and othersRelied on¶7
AIR 2009 SC 354 · Who else cites this
2 provisions across 1 enactments
Smt. Siddamma (since deceased, by legal heirs Sharanappa Nagalapur and Sukanya Nagalapur)
Sri. Subhas Reddy Bhomakkanavar (since deceased, by LRs)
Smt. Laxmavva Bhomakkanavar
Suvarna Bomakkanavar
Sanjeevaraddi Bhomakkanavar
Manjula Bhomakkanavar
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
