Karnataka High Court
Smt. Apoorva vs Lingegowda (Dead) on 1 August, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:26842
RSA No. 2408 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2408 OF 2017 (PAR)
BETWEEN:
SMT. APOORVA
D/O LINGE GOWDA
AGED ABOUT 18 YEARS
R/O MOTHAHALLI VILLAGE
KOTHATI HOBLI
MANDYA DISTRICT-571426
...APPELLANT
(BY SRI. ARCHANA MURTHY P, ADVOCATE)
AND:
1. LINGE GOWDA (DEAD)
S/O KEMPEGOWDA
Digitally signed
by SHARANYA T 1(a) PRABHAVATHI
Location: HIGH W/O KEMPEGOWDA
COURT OF AGED ABOUT 45 YEARS
KARNATAKA
R/O MOTHAHALLI VILLAGE
KOTHATI HOBLI
MANDYA DISTRICT-571426
2. L. KEMPARAJU
S/O LINGE GOWDA
AGED ABOUT 32 YEARS
3. M.L.KUMAR
S/O LINGE GOWDA
AGED ABOUT 30 YEARS
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4. M.L. ASHA
D/O LINGE GOWDA
AGED ABOUT 24 YEARS
ALL ARE R/O MOTHAHALLI
VILLAGE, KOTHATI HOBLI
MANDYA DISTRICT-571426
...RESPONDENTS
(BY SMT. SARITHA KULKARNI, ADVOCATE FOR R1(a);
SRI PRASHANT CHANDRA S.N., ADVOCATE FOR R2 TO R4)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 19.8.2017 PASSED IN RA
NO.102/2013 ON THE FILE OF THE I ADDL. SENIOR CIVIL
JUDGE AND CJM, MANDYA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 5.07.2013
PASSED IN OS NO.132/2009 ON THE FILE OF THE ADDL. CIVIL
JUDGE AND JMFC, MANDYA AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
respective parties.
2. This second appeal is filed challenging the
dismissal of the suit filed by the plaintiff and also dismissal
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of the appeal and rejection of an application filed under
Order 41 Rule 27 of CPC filed before the Appellate Court.
3. The contention of the counsel for the appellant
that suit was filed for the relief of partition claiming that
she is the daughter of defendant No.1 and defendant
Nos.2 to 4 are the children of defendant No.1 through first
wife. The plaintiff claims that she born to defendant No.1
through the second wife Smt. Prabhavathi and the Trial
Court comes to the conclusion that relationship is not
proved by the plaintiff inspite of PW1 to PW4 are examined
before the Trial Court and produced the documents at
Ex.P1 to P4 and also the order passed in FDP at Ex.P5 and
hence, the appeal was filed before the Appellate Court. In
the Appellate Court, the plaintiff had challenged the order
passed by the Trial Court and also filed an application
under Order 41 Rule 27 of CPC seeking permission to
produce the documents in order to prove her case and the
same is also dismissed and consequently, the appeal also
dismissed. Hence, the present second appeal is filed. In
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the second appeal, this Court framed the following
substantial questions of law:
1. Whether the finding by the Courts below
that the appellant is not able to establish
her relationship with the respondent No.1
is based on the material evidence on
record including the oral testimony of
PWs2 and 3 (independent witnesses)?
2. Whether the Appellate Court is justified in
rejecting the application filed by the
appellant under Order XLI Rule 27 of Code
of Civil Procedure?
4. The counsel for the appellant would vehemently
contend that the very approach of the Appellate Court is
erroneous when the documents are produced before the
Court including the document of SSLC marks card and the
same is narrated by the Appellate Court in paragraph 34
that the documents sought to be produced are very much
important to prove the relationship of the appellant with
respondent No.1 that is the wedding card of respondent
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No.1 and Prabhavathi, school certificate of the appellant
and Xerox copy of the income and caste certificate of the
plaintiff issued by the Tahsildar and Aadhar card and
ration card and though Appellate Court in detail discussed
the same in paragraph 35, but erroneously comes to the
conclusion that the appellant fails to invoke Order 41 Rule
27 of CPC and there is much cloud on the documents
produced by the appellant and without entertaining such
application, Appellate Court made such observations and
the same is erroneous. The counsel also would
vehemently contend that application under Order 41 Rule
27 of CPC is filed only in a routine manner and the said
observation is also erroneous wherein the said documents
are filed to prove the relationship and even examined the
witnesses at PW2 to PW5 who have witnessed the
marriage which was taken place at Dharmastala. The
same is also not considered by both the Courts. The
counsel also brought to notice of this Court that Ex.D2
produced by the defendants themselves which is copy of
the judgment and decree passed in O.S.No.144/1997 and
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when the defendants have filed the suit in
O.S.No.144/1997 wherein specifically pleaded that
defendant No.1 that is the Lingegowda got married second
time after the death of his first wife Jayamma and when
such admission is given in their own pleadings, the same
has not been considered and hence, the second appeal is
liable to be allowed.
5. Per contra, the learned counsel appearing for
the respondents would vehemently contend that the
documents which sought to have been produced before
the Appellate Court are not produced before the Trial
Court and the Appellate Court also while considering the
material on record in detail discussed the same in
paragraphs 35 and 36 that the appellants have not made
out any case to consider those documents and doubted
with regard to the admission given by PW1 and also with
regard to the marriage taking into note of the document of
marriage invitation card which was produced before the
Appellate Court and not before the Trial Court. The counsel
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would vehemently contend that even though the document
at Ex.D2 is marked, it only discloses that he married
second time and he neglected the plaintiffs in suit in
O.S.No.144/1997 and the same not admitted their
relationship between defendant Nos.1 and 2 and hence,
the Appellate Court rightly rejected the application and
both the Courts have considered the material on record.
6. Having heard the learned counsel appearing for
the respective parties and also on perusal of the document
available on record particularly the document of Ex.D2
which is the judgment and decree passed in
O.S.No.144/1997 and the said suit is filed by the
defendants/respondents herein wherein they categorically
admitted that after the death of first wife - Jayamma,
defendant No.1 in the said case got married second time
with defendant No.1 in the present case and defendant
No.1 is also now no more. But though earlier he denied in
O.S.No.144/1997 that he married Prabhavathi but
subsequently he gave evidence that he married and in the
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said wedlock, the appellant herein is born and when the
appellant filed an application under Order 41 Rule 27 of
CPC, the same is not opposed by the respondents herein
by filing the statement of objections, the Appellate Court
proceeded to pass an order without entertaining those
documents and if that application is allowed and
considered, then the very finding of the First Appellate
Court is correct but without admitting those documents an
observation is made on those documents are not
permissible under law. When said documents have not
been considered by the Appellate Court, the Appellate
Court ought not to have given any finding on those
documents and ought to have been examined only
whether Order 41 Rule 27 has to be invoked or not.
7. First of all, in their own plaint, they have
pleaded that the said Lingegowda got married second time
after the death of first wife Jayamma. It is also important
to note that Ex.D3 is also produced i.e., bank statement
wherein the name of second wife is also mentioned along
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with the said Lingegowda and the same is also not
considered by Trial Court and both the Courts failed to
consider the documents which the appellant produced to
prove the relationship. It is the case of the appellant that
she is the daughter of Lingegowda and Appellate Court, no
doubt, in paragraph 35 discussed with regard to the scope
of the Order 41 Rule 27. I have already pointed out that
objection is not filed to the said application and observed
that Appellate Court committed an error in not considering
the documents which sought to have been produced
before the Appellate Court and the Appellate Court ought
to have allowed the application filed under Order 41 Rule
27 and remanded the matter to the Trial Court to consider
those documents, instead of that committed an error in
dismissing the application filed under Order 41 Rule 27 but
commented on those documents. In order to decide the
germane issues between the parties, the same are
relevant documents. Hence, I answer both substantial
questions of law as affirmative that both the Courts have
committed an error in coming to the conclusion that the
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appellant has not able to establish her relationship with
respondent No.1 and failed to consider the documents and
also not properly considered the oral testimony of PW2
and PW3 who are the independent witnesses who have
deposed before the Court that they have attended the
marriage of defendant No.1 with defendant No.1 in the
earlier suit which was taken place at Dharmastala. When
such finding is erroneous and material evidence has not
been considered and when application filed under Order 41
Rule 27 for the production of additional documents even
producing SSLC marks card of the appellant, the Appellate
Court ought to have considered the same and remanded
the matter to the Trial Court to consider the additional
evidence placed before the Appellate Court and the same
also not done and hence, the very reasoning given by both
the Courts is erroneous. When there is an admission on
the part of the defendants themselves in the suit filed by
them, only judgment is placed before this Court and not
produced the copy of the plaint to show that whether there
is categorical and unequivocal admission is there in the
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said plaint and hence, it is appropriate to allow this appeal
setting aside the judgment and decree of both the Courts
and consequently I.A. filed under Order 41 Rule 27 of CPC
requires to be allowed and the matter requires to be
remitted back to the Trial Court to consider the same
afresh in view of the observations made by this Court.
Accordingly, both substantial questions of law is answered
as affirmative.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is allowed.
The impugned order dated 19.08.2017 passed in
R.A.No.102/2013 by the First Appellate Court and
impugned order dated 05.07.2013 passed in
O.S.No.132/2009 passed by the Trial Court are set aside
and consequently, the application filed under Order 41
Rule 27 of CPC is allowed and the matter is remanded to
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the Trial Court to consider the same afresh in view of the
observations made in the order.
Both the parties are directed to appear before the
Trial Court on 28.08.2023 without expecting any notice
from the Trial Court. The parties and their respective
counsel are directed to assist the Trial Court in disposal of
the matter at the earliest not later than six months since
the suit is of the year 2009 and the issue involved
between the parties is only with regard to the relationship
between the parties i.e., whether the appellant/plaintiff is
entitled for a share in the property since there was a
decree in O.S.No.144/1997 in respect of the children of
the first wife. The Trial Court is directed to give an
opportunity to both the parties to substantiate their
contention.
Sd/-
JUDGE
SN
