B Veeresh S/O Bangi Sadappa vs P Madhu Babu S/O. Late Nageshwara ...
2022 Latest Caselaw 2950 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

        WRIT PETITION NO.100580/2022 (GM-CPC)
BETWEEN

B. VEERESH,
S/O BANGI SADAPPA
AGED ABOUT 42 YEARS,
OCC. AGRICULTURIST,
R/O. KELIGINAPETE
KURUGODU-VILLAGE,
BALLARI TALUK AND DISTRICT-583116.

                                       ...PETITIONER
(BY SRI. MANJUNATHA G. PATIL, ADV.)

AND

P. MADHU BABU
S/O. LATE NAGESHWARA RAO
AGE: 41 YEARS,
AGRICULTURIST,
R/O. OPP. KPCL KUDITHINI VILLAGE,
BALLARI TALUK AND DISTRICT-583115.
                                      ...RESPONDENT

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE I.A.NO.2/2021 IN R.A.NO.19/2021 (IN
O.S.NO.595/2019) DATED 10.12.2021 ON THE FILE OF 1ST
ADDITIONAL SENIOR CIVIL JUDGE AT BALLARI, AGAINST
THE PETITIONER HEREIN AND MARKED AS ANNEXURE-H.
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    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioner is the appellant in R.A.No.19/2021

on the file of the I Additional Senior Civil Judge, Ballari

[for short, 'the appellate Court']. The appellant has

impugned the appellate Court's order dated 10.12.2021

rejecting the petitioner's application [I.A. No.II] under

Order XXVI Rule 10[A] read with Section 151 of the

Code of Civil Procedure, 1908 [for short, 'the CPC']. The

petitioner has filed this application for forensic

examination of the disputed signatures in the plaint

document viz., the Promissory Note dated 25.06.2016.

2. The undisputed facts are that the

respondent has commenced his suit for recovery of

money in O.S. No.595/2019 on the file of the Principal

Civil Judge and JMFC, Ballari. This suit is decreed by

the Judgment and decree dated 27.01.2021 directing

the petitioner to pay a sum of Rs.1,60,000/- along with

interest at the rate of 6% per annum on the principal

amount of Rs.1,00,000/- from the date of the suit till

the date of realization. The petitioner has called this

Judgment and decree in question in appeal before the

appellate Court.

3. The petitioner has filed the present

application before the appellate Court to refer the plaint

document viz., Promissory Note dated 25.06.2016 for

scientific examination asserting that it would be just

and proper to secure Expert's opinion on the disputed

signatures; and other than this reason, the petitioner

has not assigned any other. The appellate court has

rejected this application observing that the petitioner

has filed this application for the first time in the appeal

and the application is filed to fill up a possible lacuna

in the defence. The appellate Court has also opined

that the material on record would suffice for a

decision on whether the plaint document is executed by

the petitioner or not.

4. The merits of the impugned order is tested

not only as against the bald assertions made in support

of the application and also in the light of the decision of

a co-ordinate Bench of this Court in ''Cantreads [P] Ltd

and Others v. Annie Augustine Kunnapillil and Others'

reported in 2020 [3] KCCR 2380. This Court has held

that even for entertaining the application under Order

XXVI of CPC, which would essentially be to bring on

record additional material for the first time at the

appellate stage, the necessary ingredients under Order

XLI Rule 27 of CPC will have to be satisfied. The

relevant part of this Court's Judgment reads as under:

"AS TO ORDER APPOINTING COURT COMMISSIONER

a) ordinarily, Courts will appoint a Commissioner for conducting spot inspection and submitting report when there is dispute as to the identity, location, extent and nature of the

property or any construction existing or undertaken in such property; Commissioner's report and the evidence taken by him becomes evidence and shall form part of the record by virtue of Order XXVI Rule 10(2) of the Code, as rightly submitted by Mr.Acharya; if it was a suit, perhaps there was no much problem at all for the appointment of Commissioner; however, the suit having been dismissed, in appeal, the Commissioner could not have been appointed merely by treating the application filed by the contesting respondents under Order XXVI Rule 9 of CPC, 1908; the right course for the respondents was to make an application under Order XLI Rule 27 seeking leave of the Appellate Court for production of additional evidence namely the report of the Commissioner; this view is consistent with the decision of a Co-ordinate Bench of this Court in the case of GHALEPPA VS GUNDEPPA, 1981 1 KLJ 401;

b) there is force in the submission of Mr.Acharya that ordinarily, in the absence of such an effort having been made in the suit itself, the parties in their appeal straight away cannot seek appointment of the Court Commissioner without establishing cogent grounds therefor; the

Co-ordinate Bench in the decision supra has observed as under:

".......The application has been made (I.A.III) under Order 41 Rule 27 CPC. That provision is available only for leading additional evidence. Having regard to the amendment made in Karnataka to Rule 27 of Order 41, the applicant-appellant has not made out any ground for allowing his application inasmuch as why this was not done in the trail Court or the first Appellate Court is not disclosed. Additional evidence even if it be in the form of a Commissioner's report can be taken only if the conditions imposed for receiving such evidence under Rule 27, Order 41 are satisfied, Appellant, in the application has not even attempted, to satisfy those conditions............."

(c) as already mentioned above, the report of the Commissioner along with his evidence on which it is structured becomes additional evidence and constitutes part of the record by

virtue of Order XXVI Rule 10(2); therefore, there was requirement of another application in terms of Order XLI Rule 27; it has been a settled position of law that the latter application needs to be taken up along with the main matter i.e., the appeal itself for consideration; in other words, even the application for appointment of the Commissioner could not have been considered independently of the appeal itself vide SATISH KUMAR GUPTA AND OTHERS vs STATE OF HARYANA AND OTHERS, vide (2017) 4 SCC 760;"

This Court, in the light of these circumstances is

not persuaded to opine that the impugned order suffers

from any infirmity. Therefore, the petition stands

disposed of with the observation that neither the

rejection of the application nor the petition shall

prejudice the petitioner's defence as regards the plaint

document.

Sd/-

JUDGE

AN/-