Smt Lakshmi K Lakshman Vs Sri Nagarajaiah

SRI NAGARAJAIAH S/O LATE SIDDARAMAIAH AGED ABOUT 47 YEARS, BUSINESSMAN, R/AT 84, B BLOCK, ROSE GARDEN APARTMENTS, NEAR VENKATESHWARA TEMPLE, YELAHANKA OLD TOWN, BENGALURU. 560020

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…RESPONDENT

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(BY SRI. BASAVARAJU.P., ADVOCATE FOR C/R)

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2 - NC: 2026:KHC:9157 MSA No. 242 of 2025

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HC-KAR

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.10.2024 PASSED IN RA NO.75/2023 BY THE IST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE, BY CONFIRMING THE JUDGMENT AND DECREE DATED 16.03.2023 PASSED IN OS NO. 392/2021 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, DAVANAGERE, BY DISMISSING THE SUIT OF THE PLAINTIFFS IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is filed against the judgment and decree dated 29.10.2024 passed by the I Additional Senior Civil Judge, Davanagere in R.A.No.75/2023 remanding the matter to the Trial Court and allowing the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’ for short) for production of additional documents filed by the plaintiff/appellant before the First appellate Court. The miscellaneous second appeal is filed by the defendants.

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3 - NC: 2026:KHC:9157 MSA No. 242 of 2025

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HC-KAR

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Learned counsel appearing for the defendants

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would urge that the suit for declaration and injunction was

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dismissed, then the plaintiff filed an application under Order XLI Rule 27 of CPC as the plaintiff intended to produce registered Joint Development Agreement dated 15.10.2015 and Special Power of Attorney dated 21.12.2021. The Appellate Court felt that the documents are necessary for adjudication of the case and remanded the matter for fresh consideration.

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Learned counsel for the Appellants would urge that the plaintiff had an opportunity to produce those documents when the suit was filed and that opportunity was not availed and the Appellate Court could not have allowed the application without imposing any cost and without there being any ground for allowing the said application. Thus, it is urged that the decree dismissing the suit has to be confirmed and the decree passed by the First Appellate Court has to be reversed.

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NC: 2026:KHC:9157 MSA No. 242 of 2025

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HC-KAR

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4. Learned counsel appearing for the

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respondent/plaintiff would urge that the suit is not for bare

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injunction, it is a suit for declaration and injunction in respect of immovable property. It is his further contention that the suit is based on Joint Development Agreement as well as the Special Power of Attorney and since the evidence was led through the power of attorney holder, inadvertently the documents are not produced before the Trial Court and this is one of the reasons why the suit is dismissed. Thus, the appeal is filed and the plaintiff to substantiate his claim has filed an application Under Order XLI Rule 27 of CPC and intended to produce the registered joint development agreement, supplementary agreement and original GPA. It is his contention that these documents are necessary for adjudication of the case and merely because there is delay on the part of the plaintiff in producing the documents that cannot be a ground to dismiss the application as well as the appeal. Thus, he

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NC: 2026:KHC:9157 MSA No. 242 of 2025

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HC-KAR

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would urge that the judgment and decree passed by the Appellate Court be confirmed.

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The Court has considered the contentions raised

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at the bar and perused the records.

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6. Following point would arise for consideration:

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“Whether the First Appellate Court is justified in allowing the appeal and remanding the matter by allowing the application under Order XLI Rule 27 of the Code of Civil Procedure enabling the plaintiff to adduce additional evidence?”

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7. Admittedly, the suit is in respect of immovable

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property and the suit is for declaration and injunction. The plaintiff appears to be making a claim based on registered Joint Development Agreement, Supplementary Agreement and the Special Power of Attorney executed by the owner of the property. It is also noticed that the plaintiff claims that defendant No.1/appellant is a partner along with the plaintiff. This being the position, the Court is of the view that the plaintiff is making a claim based on the registered joint development agreement and supplementary

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HC-KAR

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agreement. Under the circumstances, the said documents would be necessary for adjudication of the controversy between the parties.

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Though the learned counsel of defendant no. 1/ appellant is just right in saying that the plaintiff could have moved this application and produced documents before the Trial Court itself, what is required to be noticed is that, cannot be a sole ground to dismiss the application filed before the Appellate Court. The Appellate Court has the power to allow the application for production of additional documents if the First Appellate Court feels that the documents are necessary for adjudication of the case.

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On going through the contentions raised before the Court, the Court is of the view that the documents sought to be produced are necessary for adjudication of the case on hand. This being the position, the Court does not find any error in the judgment and decree passed by the First Appellate Court in remanding the matter by

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HC-KAR

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allowing the application under Order XLI Rule 27 of CPC

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and permitting the parties to lead evidence. However, what is required to be noticed is, the suit was filed in the year 2021 and the application for production of additional documents was filed in the year 2023 before the Appellate Court. The Appellate Court ought to have imposed a reasonable cost on the plaintiff for not producing the documents before the Trial Court and causing one more round of litigation, in view of the production of additional documents which warranted remand of the matter.

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Hence the following:

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ORDER

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(i) The appeal is dismissed .

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(ii) Confirming the order passed by the First Appellate Court, remanding the matter, the Court is of the view that the respondent/plaintiff should pay a cost of ₹25,000/- to the appellants and the costs shall be paid on the next date of hearing before the Trial Court.

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