Karnataka High Court

Sri N Ramakrishna Gowda vs Smt Padma on 31 May, 2022

Bench: S.R.Krishna Kumar

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 31ST DAY OF MAY, 2022

                         BEFORE

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

            R.F.A.NO.1081 OF 2021 (PAR/POS)


BETWEEN

SRI N.RAMAKRISHNA GOWDA
S/O LATE NARAYANA GOWDA
AGED ABOUT 60 YEARS
PRESENTLY RESIDING ATNO.16/11,
2ND MAIN, CHIKKABEGUR GATE
MADIVALA POST, BENGALURU-560 029

PERMANENT RESIDENT OF:
HEBBARI VILLAGE, KASABA HOBLI
CHINTAMANI TALUK-563 125
CHIKKABALLAPURA DISTRICT
                                            ...APPELLANT

(BY SRI.B.M.SANTOSH, ADVOCATE)

AND

1.     SMT.PADMA
       D/O.LATE H.N.REDDAPPA
       W/O.NARAYANASWAMY
       AGED ABOUT 41 YEARS
       RESIDING AT KETHAGANAHALLI VILLAGE
       CHALDIGANAHALLI POST-563 135
       SRINIVASAPURA TALUK,
       KOLAR DISTRICT

2.     SRI.SATHYANARAYANA GOWDA
       S/O.LATE H.N.REDDAPPA
       AGED ABOUT 38 YEARS
                              2



3.   SRI.RAMESH
     S/O.LATE H.N.REDDAPPA
     AGED ABOUT 35 YEARS

4.   SRI H.N.VENKATEGOWDA
     S/O.LATE NARAYANA GOWDA
     AGED ABOUT 55 YEARS

     DEFENDANT NO.2 TO 4
     ARE RESIDENTS OF:
     HEBBARI VILLAGE,
     KASABA HOBLI
     CHINTAMANI TALUK-563 125
     CHIKKABALLAPUR DISTRICT

5.   SMT.RADHAMMA
     D/O.LATE NARAYANA GOWDA
     W/O.GOPALA REDDY
     AGED ABOUT 51 YEARS
     OOLAVADI VILLAGE AND POST
     CHINTAMANI TALUK-563 125
     CHIKKABALLAPUR DISTRICT
                                           ...RESPONDENTS

(BY H.N.RAMESH, ADVOCATE FOR R4 & R5
    R1 TO R3 - SERVED)

                           *****

     THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,

AGAINST THE JUDGMENT AND DECREE DATED 07.09.2021 PASSED

IN O.S.NO.42/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND

JMFC, CHINTAMANI, DISMISSING THE SUIT FOR PARTITION AND

SEPARATE POSSESSION AND ETC.


     THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
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                          JUDGMENT

This appeal by the plaintiff in O.S.No.42/2021 is

directed against the impugned judgment and decree dated

07.09.2021 passed by the Senior Civil Judge and JMFC,

Chintamani (for short "the trial Court"), whereby the aforesaid

suit filed by the appellant-plaintiff against the respondents-

defendants for partition and separate possession of his

alleged share in the suit schedule properties and for other

reliefs was dismissed by the trial Court.

2. When the present appeal came up for admission

before this Court on 15.12.2021, emergent notice was ordered

to the respondents, pursuant to which, while respondent Nos.4

and 5 have entered appearance through their counsel,

respondent Nos.1 to 3 have been served with notice of this

appeal and have not chosen to contest the appeal and

remained unrepresented. It is also relevant to state that the

aforesaid respondent Nos.1 to 3, who were arrayed as

respondent No.2 before the trial Court were placed exparte

and they had not contested the suit.

3. Heard learned counsel for the appellant, learned

counsel for respondent Nos.4 and 5 and perused the material

on record including the judgment and decree passed by the

trial Court.

4. The following points arises for consideration in

the present appeal:

I. Whether I.A.No.1/2022 deserves to be allowed? II. Whether the impugned judgment and decree warrants interference by this Court?

Regarding Point No.(I)

5. The material on record discloses that defendant

Nos.1 to 3 and 5 remained exparte and did not contest the

suit, while defendant No.4 having entered appearance through

his counsel also did not contest the suit by either filing written

statement or by adducing oral and documentary evidence. So

also, defendant No.4 did not cross-examine the plaintiff, who

examined himself as PW.1 and the documents, Exs.P-1 to 5

comprising of the genealogical tree and revenue records

produced by the appellant-plaintiff remained unchallenged,

uncontroverted and unimpeached before the trial Court.

Despite having noted that the pleadings and the evidence

adduced by the plaintiffs on merits well as the relationship

between the parties had not been impeached or challenged by

the respondents before the trial Court as well as the fact that

the respondents-defendants had not adduced any rebuttal

evidence to impeach the pleadings and evidence of the

appellant-plaintiff, the trial Court came to the conclusion that

the suit schedule properties were not joint family properties

and consequently, proceeded to dismiss the suit by passing

the impugned judgment and decree, aggrieved by which the

appellant-plaintiff is before this Court by way of the present

appeal.

6. In addition to reiterating the various contentions

urged in the Memorandum of Appeal and referring to the

documents produced by the appellant, learned counsel for the

appellant submits that during the pendency of this appeal, the

appellant-plaintiff has filed I.A.No.1/2022 under Order 41 Rule

27 CPC seeking permission to produce additional evidence by

way of nine documents. It is contended that the aforesaid

evidence clearly establishes the fact that the suit schedule

properties are joint family properties of the plaintiff and

defendants and consequently, the plaintiff would be entitled to

his legitimate share in the suit schedule properties. It is also

submitted that the aforesaid documents are relevant and

material to enable this Court to pronounce judgment and

effectively adjudicate upon the issues in controversy between

the parties and to consider and appreciate the claim of the

appellant-plaintiff and as such, it is necessary that the

appellant-plaintiff is permitted to adduce additional evidence

and the same is received on record.

7. Per contra, learned counsel for respondent Nos. 4

and 5 submits that subject to admissibility, relevance and

proof of the aforesaid documents sought to be produced by

way of additional evidence, respondent Nos.4 and 5 do not

have any objection that the said documents be received by

way of additional evidence. The submission of learned

counsel for respondent Nos.4 and 5 is placed on record. As

stated supra, respondent Nos.1 to 3 having been served with

notice of this appeal, have chosen to remain unrepresented

and have not contested this appeal also.

8. A perusal of the impugned judgment and decree

passed by the trial Court will indicate that the trial Court has

come to the conclusion that the appellant-plaintiff has not

adduced sufficient evidence to establish that the suit schedule

properties are joint family properties and consequently,

proceeded to dismiss the suit filed by the appellant-plaintiff.

The documents now sought to be produced by way of

additional documents clearly indicate that the same relates to

the suit schedule properties and that the same are relevant

and material to consider and appreciate the claim of the

appellant-plaintiff that the suit schedule properties are joint

family properties. Further, in the affidavit in support of the

application, the appellant-plaintiff has stated that due to

oversight and inadvertence, it was not possible for the

appellant-plaintiff to produce the said document during the

course of the evidence in the trial Court despite exercise of

due diligence on the part of the appellant-plaintiff. It is also

stated in the affidavit that the additional documents sought to

be produced are vital, germane and are absolutely necessary

to prove the case of the appellant-plaintiff and that no

prejudice would be caused to the respondents-defendants if

the appellant is permitted to adduce additional evidence.

9. In view of the aforesaid facts and circumstances,

in particular, the fact that the documents now sought to be

produced by the appellant-plaintiff are relevant and material

for the purpose of adjudication of the issues in controversy

between the parties, I am of the considered view that

I.A.No.1/2022 deserves to be allowed and accordingly, the

application is hereby allowed by permitting the appellant-

plaintiff to produce the said documents by way of additional

evidence.

Accordingly, point No.1 is answered in affirmative.

Regarding Point No.(II)

10. After having come to the conclusion that the

appellant-plaintiff is entitled to produce the documents

mentioned supra by way of additional evidence, the next

question that arises for consideration is the procedure to be

adopted for the purpose of disposal of this appeal. In this

context, it is relevant to extract Order 41 Rule 28 CPC, which

is as under:

"28. Mode of taking additional evidence.- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."

11. The material on record and nature of documents

now allowed to be produced by way of additional documents

and defence to be put forth by the respondents and the

submission made on behalf of respondent Nos.4 and 5 that

the admissibility, relevance and proof of the documents has to

be adjudicated by a full fledged trial, I deem it just and proper

to set aside the impugned judgment and decree and remit the

matter back to the trial Court for re-consideration afresh by

leaving open all contentions on merits on all aspects to be

adjudicated by the trial Court.

Point No.(ii) is answered accordingly.

12. In the result, I pass the following: