Sri a Veerappa Vs Sri Ashok

THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 29.06.2015 PASSED IN RA NO.20/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.02.2013 PASSED IN OS.NO.119/2009 ON THE FILE OF THE PRL. CIVIL JUDGE HARIHAR.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 29.06.2015 passed in R.A.No.20/2013 by the learned Senior Civil Judge, Harihara and the judgment and decree dated 13.02.2013 passed in O.S.No.119/2009 by the learned Principal Civil Judge and JMFC, Harihara.

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For convenience, the parties are referred based

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on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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Plaintiff filed a suit for mandatory injunction directing defendants No.1 to 9 to remove the illegal fencing and stones put up by defendants No.1 to 7 on the road shown in the letters A, B, C, D, in the plaint rough sketch and for

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the permanent injunction restraining defendants No.1 to 7 from causing any obstruction in any manner to the plaintiff to approach the Panchayat road from the suit property.

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It is the case of the plaintiff that suit schedule property is a house bearing Sy.No.130/1 measuring East to West 65 ft, North to South 46 ft. situated at Kondajji Village, Harihara Taluk, Davanagere District. It is contended that he has purchased the suit schedule property under a registered sale deed dated 30.01.1989. Defendants No.1 to 7 are claiming to be the owners of Kanas situated towards the East i.e., Panchayat road. Though, there is no documents standing in the names of defendants No.1 to 7. In the first week of September 2008, defendants No.1 to 7 forcibly blocked the front road of the suit property which joins the Panchayat road and have illegally obstructed the plaintiff from entering the Eastern road. Hence, the plaintiff requested the defendants not to obstruct but the defendants did not give any heed to the request made by the plaintiff. Hence, a

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cause of action arose for the plaintiff to file a suit for mandatory and permanent injunction. Accordingly, prays to decree the suit.

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Defendants No.3 and 7 filed a written statement

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and defendants No.1, 2, 4 and 6 have filed a memo adopting the written statement filed by defendants No.3 and 7. The defendants denied the plaint averments and also denied the existence of the alleged panchayat road towards Eastern side of the suit schedule property. It is contended that towards Eastern side of the suit schedule property, there exists a rick-yard (Kana) of Hanumanthappa S/o. Basappa, Vanajakshamma W/o Gadigeppa and Sumitramma W/o Rudrappa and it is contended that there is no panchayat road in existence. It is contended that the suit filed by the plaintiff is not maintainable. Hence, prays to dismiss the suit.

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Defendant No.8 filed a written statement

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denying the plaint averments and contended that there is

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no existence of Panchayat road on the Eastern side of the

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suit property. Hence, prays to dismiss the suit.

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The trial Court, on the pleadings of the parties,

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framed the following issues:

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1) Whether the plaintiff proves that there is a road situated on eastern side of suit schedule property and the same is blocked by defendant Nos.1 to 7 which resulted in interference of he using the road situated on eastern side?

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2) Whether the plaintiff is entitled for the relief of permanent and mandatory injunction as sought by him?

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3) Whether the defendant Nos.1 to 7 prove that suit of the plaintiff is not maintainable in the present form?

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4) Whether plaintiff is entitled for the relief sought by him or any other relief?

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5) What order or decree?

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The plaintiff, to prove his case, examined himself as PW-1, examined one witness as PW-2 and marked 17 documents as Exs.P.1 to P.17. In rebuttal, defendants No.7 and 8 were examined as DW-1 and DW-2 and no documents were marked.

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The trial Court, after recording the evidence,

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hearing both sides and on the assessing of verbal and documentary evidence, answered issues No.1 to 4 in the negative and issue No.5 as per final order. The suit of the plaintiff was dismissed with cost, vide judgment dated 13.02.2013. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.119/2009, preferred an appeal in R.A.No.20/2013 on the file of the Senior Civil Judge, Harihara.

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The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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POINTS

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1. Whether the trial Court is justified in dismissing the suit filed by the appellant/plaintiff?

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2. Whether the appellate made out fit grounds to allow IA.No.1 filed U/o 41 Rule 27 of CPC?

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What order or decree?

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The first appellate Court, on reassessing the verbal and documentary evidence, answered point No.1 in the affirmative and point No.2 in the negative and point No.3 as per the final order.

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The appeal was dismissed and the judgment and decree passed by the trial Court in O.S.No.119/2009 was confirmed and I.A. filed by the plaintiff under Order XLI Rule 27 read with 151 of Code of Civil Procedure, 1908 (for short CPC) was dismissed vide judgment dated 29.06.2015. The plaintiff, aggrieved by the impugned judgments filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the plaintiff and defendants No.8 and 9 and 10.

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Learned counsel for the plaintiff submits that plaintiff filed an application for the production of additional evidence under order XLI Rule 27 of CPC before the first appellate Court. The first appellate Court without assigning any reasons, has rejected the said application. He submits

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that the first appellate Court committed an error in rejecting I.A.No.1. He submits that the proposed additional documents produced along with I.A.No.1 goes to the root of the case. Hence, he submits that the first appellate Court committed an error in passing the impugned judgment. Hence, on these grounds he prays to allow the appeal.

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Per contra, learned counsel for defendant No.1 has supported the impugned judgment and submits that the proposed documents sought to be produced by the plaintiffs were not relevant for deciding the dispute. Hence, he submits that the impugned judgments passed by the Courts below, are just and proper and do not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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This Court, vide order dated 04.09.2024 admitted the appeal, to consider the following Substantial Questions of Law.

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“Whether the first appellate Court was justified in rejecting the application filed by the appellant for production of additional evidence without assigning any reasons?”

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Though the plaintiff has filed a suit for

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mandatory and permanent injunction, to prove his case, examined himself as PW-1, also examined one witness as PW-2, marked 17 documents as Exs.P.1 to P.17. On the other hand, defendant No.7 examined himself as DW-1 and defendant No.8 examined as DW-2, but has not produced any documents.

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The trial Court dismissed the suit of the plaintiff with cost vide judgment dated 13.02.2013. The plaintiff, aggrieved by the judgment passed in O.S.No.119/2009 preferred an appeal in R.A.No.20/2013. In the appeal, the plaintiff has filed an application in I.A.No.1 for the production of additional evidence.

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From the perusal of the judgment passed by the first appellate Court, in paragraph No.30, the first

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appellate Court, while rejecting the said application for the production of additional evidence, has not assigned any reasons for rejecting the application. The first appellate Court has not recorded any finding on whether the plaintiff has fulfilled the requirements of Order XLI Rule 27 of the CPC. In a single sentence, the first appellate Court has rejected I.A.No.1.

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The first appellate Court committed an error in rejecting I.A.No.1 without assigning any reasons. Hence, on this ground alone, the judgment and decree passed by the first appellate Court is liable to be set aside. The judgment and decree passed by the first appellate Court in R.A.No.20/2013 is arbitrary, erroneous and perverse. Hence, in view of the above discussion, I answer Substantial question of Law No.1 in the negative.

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