Sri Padmaprasad vs Smt. Sarojamma
2022 Latest Caselaw 452 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JANUARY, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

        WRIT PETITION NO.315/2022 (GM-CPC)


BETWEEN:

SRI PADMAPRASAD
AGED ABOUT 40 YEARS,
S/O ERAYYA GOWDA,
R/AT SHRAVANABELAGOLA,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT 573116

AND ALSO AT GULUKOPPA,
HUNCHA VILLAGE AND HOBLI,
HOSANAGARA TALUK,
SHIVAMOGGA DISTRICT 577426

                                        ... PETITIONER
(BY SRI.M.CHANDRASHEKAR, ADVOCATE)

AND:

SMT. SAROJAMMA
SINCE DESEASED BY HER
ALLEGED LRS RESPONDENT NO.1


1.     SRI PAYAPPA
       S/O SRI KOLLAIAH,
       AGED ABOUT 60 YEARS,
       R/AT ALUVALLI VILLAGE,
       KENCHANALA POST,
       HOSANAGARA TALUK,
       SHIVAMOGGA DISTRICT-577426     ... RESPONDENT
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      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DTD.21.12.2021 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC HOSANAGARA IN
R.A.NO.57/2016 WHICH IS ANNEXED AS ANNEXURE-A TO THIS
W.P. PASSED ON IA NO.13 FILED UNDER ORDER 41 RULE 27 OF
THE CPC AND IA O.14 FILED UNDER ORDER16 RULE 1(A) OF
THE CPC FILED BY PETITIONER IN R.A.NO.57 OF 2012 WHICH
APPLICATION IS ANNEXED AS ANNEXURE-N AND O TO THIS
W.P. AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Petitioner being aggrieved by the order dated

21.12.2021 passed by the Senior Civil Judge and JMFC,

Hosanagara in R.A.No.57/2016 on I.A.No.13 filed under

Order 41 Rule 27 and I.A.No.14 under Order 16 Rule 1(A)

of CPC filed this writ petition.

2. Brief facts leading to filing of this writ petition

are as under:

The petitioner filed a suit in O.S.No.114/2012

seeking for the relief of partition and other reliefs against

the respondent with respect to suit schedule properties.

The respondent appeared and filed a written statement.

The suit came to be decreed. The respondent being

aggrieved by the judgment and decree, preferred an

appeal in R.A.No.57/2016 before the Senior Civil Judge

and JMFC, Sagara. In the meantime, during the pendency

of the appeal the original appellant died. Thereafter, the

daughter of Smt.Eramma filed an application to come on

record as legal representatives of the deceased appellant.

The said application is still pending for adjudication. The

said daughter of Eramma expired. Thereafter, the alleged

husband of Eramma, one Payappa filed an application

before the appellate Court seeking for impleading himself

as legal representative of deceased appellant. After

hearing the arguments on the said application, the said

application came to be allowed vide order dated

19.04.2021. Thereafter, the petitioner filed an application

in I.A.Nos.13 and 14 for production of additional

documents seeking permission to examine the witnesses.

The trial Court after hearing matter on both sides passed

impugned order, wherein the appellate Court is of the

opinion that the application filed by the petitioner under

Order 41 Rule 27 and Order 16 Rule 1(A) of CPC cannot be

considered at this stage, it is proper to consider the same

along with the main appeal. Hence once again the

petitioner has filed the present petition.

3. Heard learned counsel for the petitioner.

4. Learned counsel for the petitioner submits that

if the petitioner is permitted to lead the evidence, no

injustice would be caused to the respondent. He further

submits that the trial Court has committed an error in

passing impugned order. He submits that the trial Court

ought to have entertained the application filed by the

petitioner, on the contrary has passed an order to be

heard along with the main appeal. Hence, on this ground

he prays to allow the writ petition.

5. Heard and perused the report and considered

the submission of the learned counsel for the parties.

6. It is not in dispute that the respondent and the

petitioner has filed suit for partition and separate

possession. Against the respondent, the said suit came to

be decreed. The respondent being aggrieved by the

judgment and decree preferred an appeal in

R.A.No.57/2016. During the pendency of the said suit the

original appellant died. Thereafter, the application was filed

by the legal representatives to come on record. The said

application was opposed by the petitioner. Thereafter, the

appellate Court has remanded the matter. The Appellate

Court has passed the order to hold an enquiry under Order

22 Rule 5 CPC and directed the trial Court to record

evidence on the said application and to give findings. The

trial Court after holding enquiry on the said application, the

trial Court has passed an order on the said application.

Thereafter, the petitioner filed an application seeking for

production of additional documents and also to examine

witnesses. In so far as consideration, the appellate Court

held that the said application will be considered along with

the main appeal.

7. The Hon'ble Apex Court in the case of State of

Rajasthan Vs. T.N.Sahani and others reported in

(2001) 10 SCC 619 held that the application for

production of additional facts/evidence should be decided

along with the appeal considering the necessity of the

documents, sought to be adduced as additional evidence,

for pronouncing more satisfactorily.

In the present case, in view of the law laid down by

the Hon'ble Apex Court, as the appellate Court has passed

an order to consider the said application along with main

appeal, the order passed by the appellate Court is just and

proper. I do not find any grounds to interfere with the

impugned order. Accordingly, the petition stands

dismissed.

Sd/-

JUDGE

RKA