The Karnataka High Court allowed an appeal filed under S. 100 of CPC, against the judgment and decree dated 06.03.2020 passed in R.A.No.10134/2016 on the file of the iv Addl. District and Sessions Judge, dismissing the appeal and confirming the judgment and decree dated 30.06.2015 passed in o.s.no.403/2006. The Court observed that whether the Court rejects or allows the applications and whether prayer is sought to adduce additional evidence is immaterial when permission is sought to adduce additional evidence to substantiate their case.
Brief Facts:
The appellant herein had filed the suit in O.S.No.406/2006 seeking the relief of permanent injunction contending that property was purchased in the year 1956 by the husband of the plaintiff and property is in lawful possession and enjoyment of the suit schedule property as on the date of the suit and also it is the contention that defendants are interfering with the possession of the plaintiff. The defendant said that the original owner of the property in question had already alienated it in favor of the defendant’s father and after the death of the father of the defendant, the defendant is the absolute owner and in possession of the suit schedule property. The Trial Court came to the conclusion that the plaintiff had not established his possession and dismissed the suit.
Being aggrieved, an appeal was filed by the plaintiff. The plaintiff/Appellant also filed applications under Order 41, Rule 27 of C.P.C.
Contentions of the Appellants:
The Learned Counsel for the Appellant submitted that when applications are filed under Order 41, Rule 27 of C.P.C., the same was not considered and the First Appellate Court, while passing the judgment, made a note before considering points for consideration that applications are filed but, no prayer was made in those applications seeking leave to adduce additional evidence. Therefore, no point for consideration is formulated regarding those applications or requirement of additional evidence and the very approach of the First Appellate Court is erroneous.
He contended that even though there was no prayer seeking leave to adduce additional evidence, the First Appellate Court ought to have formulated the point whether the appellant-plaintiff has made out ground to allow the applications to produce additional documents.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that the First Appellate Court while considering the points for consideration i.e., points Nos.1 and 2, before assigning reasons, made it clear that no permission is sought to adduce additional evidence and unless permission is sought to adduce additional evidence, the question of considering whether those documents are necessary or not does not arise.
Observations of the Court:
The Court noted that when the plaintiff sought to produce some additional evidence before the Court, instead of formulating the point of whether those documents were necessary or not, the Court came to the conclusion that no prayer is made in those applications seeking leave to adduce additional evidence. Hence, the question of considering the applications does not arise.
The Court observed that the very approach of the First Appellate Court is erroneous and when the applications are filed to produce additional documents, the First Appellate Court ought to have considered whether those documents are necessary to decide the issue involved between the parties and whether it helps to consider the germane issues involved between the plaintiff and the defendants. The Court said that whether the Court rejects or allows the applications and whether prayer is sought to adduce additional evidence is immaterial when permission is sought to adduce additional evidence to substantiate their case.
The decision of the Court:
The Karnataka High Court, allowing the appeal, held that the judgment and decree of the First Appellate Court is set aside and it is directed to decide whether grounds are made out to allow the applications filed under Order 41, Rule 27 of C.P.C.
Case Title: Smt. Veeramma v Sri Eshwaraiah & Ors.
Coram: Hon’ble Justice H. P. Sandesh
Case no.: REGULAR SECOND APPEAL NO. 1562 OF 2021 (INJ)
Advocate for the Appellant: Mr. Akash V. T.
Advocate for the Respondent: Mr. Shankarlingappa Nagaraj
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