Laxmikanth Rao And Ors vs Gurunathrao
2022 Latest Caselaw 287 Kant

                                   1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 7TH DAY OF JANUARY 2022

                               BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

         WRIT PETITION NO.201293/2021 (GM-CPC)

BETWEEN:
1.     Laxmikanth Rao S/o Jagannatharao Kulkarni,
       Age: 39 Years, Occ: Medical Representative,
       R/o H.No.10-3/27-B, Vithal Nagar,
       N.V.Layout, Brahmpur, Kalaburagi.

2.     Reeta D/o Jagannatharao Kulkarni,
       Age: 41 Years, Occ: Household,
       R/o H.No.10-3/27-B, Vithal Nagar,
       N.V.Layout, Brahmpur, Kalaburagi.

3.     Ambuja W/o Dattatraya Rao Nadgoud,
       Age: 50 Years, Occ: Household,
       R/o H.No.10-3/27-B, Vithal Nagar,
       N.V.Layout, Brahmpur, Kalaburagi.
                                                      ... Petitioners

(By Sri G.B.Yadav & Sri Maksood Afzal, Advocates)

AND:

Gurunathrao S/o Jagannatharao Kulkarni,
Age: 46 Years, Occ: Medical Representative,
R/o H.No.10-3/27-B, Vithal Nagar,
N.V.Layout, Brahmpur, Kalaburagi-585101.
                                                     ... Respondent

(By Sri N.B.Diwanji, Advocate for C/R)
                                      2



        This Writ Petition is filed under Article 227 of the Constitution of
India, praying to issue a writ of certiorari and quash the impugned order of
First Appellate Court in I.A.No.II U/o 41 Rule 27 R/w Sec.151 of CPC
dated 02.02.2021 in RA No.12/2020 before the I-Addl. Dist. & Sessions
Judge, Kalaburagi as per Annexure-A and etc.

      This petition coming on for preliminary hearing this day, the Court
made the following:

                                 ORDER

This petition is directed against the impugned order

dated 02.02.2021 passed in R.A.No.12/2020 by the

I-Additional District & Sessions Judge, Kalaburagi whereby the

application in I.A.No.II filed by the petitioner-appellant under

Order 41 Rule 27 CPC was dismissed by the first appellate

court.

2. Heard learned counsel for the petitioners and

learned counsel for the respondent and perused the material

on record.

3. A perusal of the material on record will indicate that

aggrieved by the judgment and decree dated 07.12.2019

passed in FDP No.8/2018 by the Principal Senior Civil Judge,

Kalaburagi, the petitioners-plaintiffs preferred the aforesaid

appeal in R.A.No.12/2020 which is pending consideration

before the first appellate court. In the said appeal, the

petitioners - appellants filed the instant application I.A.No.II

under Order 41 Rule 27 read with Section 151 of CPC seeking

permission of the court to adduce additional evidence. The

said application having been opposed by the respondent

herein who was arrayed as respondent in the appeal, the first

appellate court proceeded to pass the impugned order

rejecting I.A.No.II, aggrieved by which the petitioners are

before this Court by way of the present petition.

4. It is well settled that an application under Order 41

Rule 27 CPC for permission to adduce additional evidence

would necessarily have to be considered and disposed of only

at the time of final disposal/final hearing of the appeal and not

by way of separate/independent order without disposing of the

appeal and by keeping the same pending. In the light of this

well settled principle in relation to consideration of an

application under Order 41 Rule 27 of CPC, the impugned

order passed by the first appellate court summarily rejecting

I.A.No.II without disposing of the appeal itself and by keeping

the appeal pending consideration till today is clearly contrary

to the aforesaid principle governing Order 41 Rule 27 CPC

thereby occasioning failure of justice and warranting

interference by this court in exercise of its jurisdiction under

Article 227 of the Constitution of India.

5. In the result, I pass the following:

ORDER

(i) The Writ petition is hereby allowed.

(ii) Impugned order dated 02.02.2021 is hereby set aside. The first appellate court is directed to consider and dispose of the application I.A.No.II filed by the petitioner under Order 41 Rule 27 CPC along with the main appeal in accordance with law on merits after hearing both sides.

(iii) Having regard to the fact that the suit out of which the present appeal arises was filed in the year 2015, the first appellate court is directed to dispose of the appeal as expeditiously as possible and preferably

within a period of six months from the date of receipt of a copy of this order.

SD/-

JUDGE

swk