Gowramma vs Smt.Lakshmamma
2023 Latest Caselaw 5523 Kant

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                                                         NC: 2023:KHC:28647
                                                     MSA No. 92 of 2021




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 11TH DAY OF AUGUST, 2023

                                         BEFORE
                      THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                 MISCELLANEOUS SECOND APPEAL NO. 92 OF 2021 (RO)
                 BETWEEN:

                 1.    GOWRAMMA
                       W/O LATE MAGDEGOWDA
                       AGED ABOUT 86 YEARS

                 2.    SWAMY
                       S/O LATE MADEGOWDA
                       AGED ABOUT 57 YEARS.

                 3.    RAJU
                       S/O LATE MADEGOWDA
                       AGED ABOUT 50 YEARS

                 4.    LINGARAJA
                       S/O LATE MADEGOWA
                       AGED ABOUT 47 YEARS

Digitally signed 5.    LOKESHA
by
DHANALAKSHMI           S/O LT MADEGOWDA
MURTHY                 AGED ABOUT 45 YEARS
Location: High
Court of               ALL ARE R/AT NO 388
Karnataka              2ND MAIN, 7TH CROSS M BLOCK
                       SUBHASH NAGR, KUMBARAKOPPAL
                       MYSURU 570016.
                                                              ...APPELLANTS
                 (BY SRI. SHIVARAMA BHAT O., ADVOCATE)

                 AND:
                 1. SMT.LAKSHMAMMA
                    SINCE DEAD BY LR'S
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                                      NC: 2023:KHC:28647
                                      MSA No. 92 of 2021




1(a) SHIVANANJEGOWDA
    S/O LATE JAVAREGOWDA
      AGED ABOUT 70 YEARS.

1(b) SRINIVASA
     S/O LATE JAVREGOWDA
      AGED ABOUT 66 YEARS.

1(c) SUSHEELA
     D/O LATE JAVAREGOWDA
      AGED BOUT 61 YEARS

1(d) JAYA
     S/O LATE JAVAREGOWDA
      AGED ABOUT 57 YEARS

   R1(a) TO (d) ARE R/AT
   No.26 KUMBARAKOPPALU
   MAHADESWARA TEMPLE ROAD
   MYSORE-570016.
                                         ...RESPONDENTS
(BY SRI. CHRISTOPHER NOEL A., ADVOCATE R1(a TO d))

     THIS MSA IS FILED UNDER ORDER 41 RULE 1(u) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 08.10.2021
PASSED IN RA.No.504/2019 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 06.07.2019 PASSED IN OS.No.615/2012
ON THE FILE OF THE IV ADDITIONAL I CIVIL JUDGE AND JMFC,
MYSURU, DECREEING THE SUIT AND REMANDING BACK THE
MATTER TO TRIAL COURT.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                          MSA No. 92 of 2021




                         JUDGMENT

This appeal is filed by the plaintiffs under Order 43

Rule 1(u) of the Civil Procedure Code challenging the order

dated 08.10.2021 passed by the Additional District and

Sessions Judge, Mysuru in R.A.No.504/2019, whereby the

appeal filed by the defendant has been allowed and the

matter was remitted back to the trial court to reconsider

the matter afresh.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The brief facts of the case are that the plaintiffs

filed a suit for bare injunction in respect of the suit

schedule property. The trial court, after hearing the

parties, decreed the suit by judgment and decree dated

06.07.2019 in O.S.No.615/2012. Being aggrieved by the

same, the defendant has filed an appeal before the District

and Sessions Judge, Mysuru in R.A.No.504/2019. Along

with the appeal, the defendant filed IA No.2 under Order

26 Rule 9 of CPC and IA Nos.3 and 4 under Order 41 Rule

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27 of CPC. The First Appellate Court rejected IA No.2

and allowed IA Nos. 3 and 4 by setting aside the judgment

and decree dated 06.07.2019 passed in O.S.No.615/2012

and remitted the matter back to the trial court for fresh

consideration. Being aggrieved by the same, the plaintiffs

are before this Court.

4. The learned counsel appearing for the plaintiffs

has contended that the documents produced along with IA

No.4 filed under Order 41 Rule 27 of CPC is coming into

existence subsequent to the judgment and decree.

Therefore, the application itself is not maintainable. But

the trial court has erred in allowing the application.

5. He further contended that the defendant has filed

the earlier suit in O.S.No.288/1997 for declaration and

injunction and the same came to be dismissed on

22.01.2001 and that has attained finality. Therefore, she

has no right to continue in the possession of the property.

The First Appellate Court, without considering this aspect

of the matter, erred in remanding the matter.

NC: 2023:KHC:28647 MSA No. 92 of 2021

6. It is his further contention that even if the First

Appellate Court finds that the documents produced by the

defendant is necessary to decide the case on merits, the

only remedy for the First Appellate Court is to permit the

parties to adduce evidence before the First Appellate Court

instead of remanding the matter to the trial court. In

support of his contention, he relied on the judgment of this

Court in the case of GABRIEL BHASKARAPPA KURI

AND OTHERS vs. THE UNITED BASEL MISSION

CHURCH IN INDIA TRUST ASSOCIATION AND

OTHERS reported in ILR 2007 Kar.773. Hence, he

sought for allowing the appeal.

7. Per contra, learned counsel appearing for the

defendant has contended that the application is filed under

Order 41 Rule 27 of CPC for production of additional

documents to prove that the evidence adduced by the

plaintiffs is wrong. In the evidence the plaintiffs have

deposed that the land in dispute is an agricultural land.

From the additional documents it is very clear that in the

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land in dispute there are commercial shops and buildings.

These documents are necessary for the First Appellate

Court to decide the matter and to pass judgment on

merits.

8. He further contended that under Order 41 Rule 27

(b) of CPC, this Court can permit the parties to produce

additional evidence even if they are subsequent to the

judgment and decree if that document is required to

decide the dispute between the parties. Under these

circumstances, the trial court has rightly allowed the

appeal. Hence, sought for dismissal of the appeal.

9. Heard learned counsel for the parties. Perused

the judgment and the original records.

10. It is not in dispute that the plaintiffs filed a suit

for bare injunction. The trial court decreed the suit by

judgment and decree dated 06.07.2019. Being aggrieved

by the same, defendant filed an appeal before the District

Court in R.A.No.504/2019. Along with the appeal he filed

an application under Order 41 Rule 27 of CPC to produce

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additional documents. Even though the additional

documents produced are subsequent to the filing of the

suit, under Order 41 Rule 27(b) of CPC, if without the

additional documents, the court is unable to pronounce the

judgment on merits, the appellate court can permit for

production of additional documents. Applications IA Nos. 3

and 4 for production of additional documents and adducing

additional evidence are rightly allowed by the First

Appellate Court. The only point for consideration in this

appeal is, 'whether the First Appellate court itself can

record the evidence of the parties and decide the matter

on merits?

11. Even this Court in the case of GABRIEL

BHASKARAPPA KURI (supra) has held as under:

"11. This is not the approach which is expected of a first Appellate Court. As is clear from the aforesaid legal position, the Appellate Court should have heard the appeal on merits.

Then it should have come to the conclusion whether the evidence as it stands, some

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inherent lacuna or defect becomes apparent. Only if it found that it is unable to pronounce judgment on the basis of the evidence on record it should look into the additional evidence. Then it should have looked into the documents which are sought to be produced as additional evidence and then decide whether those additional evidence was necessary for the purpose of doing complete justice between the parties to enable it to pronounce the judgment. The observation that the additional evidence sought to be produced before the Court were not produced before the trial Court and, therefore, the trial Court has not given any findings on the subsequent documents and, hence, the matter is to be remanded back to the trial Court is a perverse finding. In each and every case of allowing the additional evidence before the first Appellate Court, it is obvious the same was not produced or permitted to be produced before the trial Court and the trial Court had no opportunity to have its say in the matter. When the statute expressly provides that, it is open to the first Appellate Court to look into that additional evidence, record oral evidence if necessary and decide the case on

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merits, it cannot be said that the parties have lost the right of appeal. The very provisions which provide for a right of appeal and procedure of preferring the appeal provides this procedure to be followed by the Appellate Court. On the ground that the parties would lose the right of appeal, the judgment and decree of the trial Court cannot be set aside and the matter should not be remanded back to the trial Court only to give opportunities to the parties to prefer an appeal.

12. The suit is of the year 1990. It was filed on 12.10.1990. The judgment and decree in the trial Court was passed on 28.9.1994. The appeal is numbered as R.A.No.58/1994 and the same was disposed of on 20.9.2006, 12 years after the institution of the appeal. In other words after 16 years of the institution of the suit the parties are back to square one. It is because of these solitary cases the entire judicial system is ridiculed. The lower Appellate Court if only had looked into these provisions and was conscious of the criticisms levelled against the judiciary, it would not have remanded the matter to the trial Court as it has

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done. Even if those documents are relevant, as the documents sought to be produced are judgments and decrees passed by various Courts, they could have been marked by consent and they could have been looked into and a judgment could have been passed on merits. Even if parties wanted opportunity to lead oral evidence, the first Appellate Court had jurisdiction to record oral evidence by itself and decide the appeal on merits with that additional evidence on record. Instead of resorting to these settled legal procedures as contemplated under Order 41 Rules 27, 28 and 29, the learned Judge has short circuited the whole process, which the lower Appellate Courts should avoid. In that view of the matter, the impugned judgment and decree of the first Appellate Court cannot be sustained. It is an appropriate case to direct the first Appellate Court itself to record the evidence if necessary and decide the appeal on merits."

12. In view of the above, the First Appellate Court

has rightly allowed IA Nos. 3 and 4. In respect of

remanding the matter to the trial court for recording

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additional evidence and directing the trial court to record

evidence, that portion of the order requires to be set aide.

The point framed by this Court is answered accordingly.

13. Accordingly, I pass the following order:

     (i)      The appeal is allowed in part.


     (ii)     The order dated 08.10.2021 passed by the II

Additional District and Sessions Judge, Mysuru

in R.A.No.504/2019 in respect of allowing IA

Nos. 3 and 4 filed under Order 41 Rule 27 of

Rule 9 of CPC is confirmed. In respect of other

portions of the order, the same is set aside.

(iii) The First Appellate Court itself is directed to

mark the additional documents and record the

oral evidence on the basis of the documents

produced by the defendant.

(iv) The First Appellate Court is directed to

consider the evidence adduced before the

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trial court as well as the First Appellate Court

and also the documents produced before the

trial court as well as the First Appellate Court

and dispose of the matter, in accordance

with law.

(v) The parties are directed to appear before the

First Appellate Court at 11.00 a.m. on

25.09.2023, without any further notice.

(vi) The First Appellate Court is directed to

dispose of the matter, as expeditiously as

possible, at any rate, within six months from

the date of appearance of the parties.

(vii) In view of disposal of the main matter, all

pending applications stand disposed of.

Sd/-

JUDGE

CM