Karnataka High Court
Smt P D Shriyala Devi vs D B Vikramaraja Since Dead By His ... on 22 June, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:21670
RSA No. 626 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.626 OF 2007 (DEC/INJ)
BETWEEN:
SMT. P.D. SHRIYALA DEVI,
W/O D.B. DASHARATHA KUMAR,
AGED ABOUT 56 YEARS,
R/O DADIGA VILLAGE,
BINDIGANAVILE HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT - 571 432.
...APPELLANT
(BY SRI JWALA KUMAR, ADVOCATE)
AND:
1. D.B. VIKRAMARAJA,
SINCE DEAD BY HIS LRS
Digitally signed
by SHARANYA T
Location: HIGH (a) D.B. PRASHANTH,
COURT OF AGED ABOUT 42 YEARS.
KARNATAKA
(b) D.R. PRAVEEN KUMAR,
AGED ABOUT 40 YEARS.
(c) D.B. RATHNAMALA,
AGED ABOUT 37 YEARS.
R1(a), (b) AND (c) ARE ALL
CHILDREN OF LATE D.B. VIKRAMARAJA,
R/AT NO.2637, I FLOOR, 8TH MAIN ROAD,
BANASHANKARI II STAGE,
BANGALORE - 560 085.
-2-
NC: 2023:KHC:21670
RSA No. 626 of 2007
2 BRAHMAIAH MAHAVEER JAIN,
S/O BRAHMAIAH,
AGED ABOUT 66 YEARS,
NO.12416, ANAND BROOK,
DR. ORLAND PARK II 60462 1079,
UNITED STATE OF AMERICA.
3. GRAMA PANCHAYATH,
JAVARANAHALLI, BELLUR HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT - 571 432.
...RESPONDENTS
(BY SRI N. SURENDA KUMAR, ADVOCATE FOR R1(a) AND (b),
NOTICE TO R1(c) IS HELD SUFFICIENT
VIDE ORDER DATED 22.04.2019,
R2 AND R3 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 24.11.2006 IN R.A.NO
39/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DVN) & JMFC,
NAGAMANGALA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 14.11.2003 PASSED IN
OS NO.190/2000 ON THE FILE OF THE CIVIL JUDGE (JR.DN), &
JMFC, NAGAMANGALA.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for respondent Nos.1(a) and (b).
2. This appeal is filed challenging the judgment and
decree dated 24.11.2006, passed in R.A.No.39/2006, on
the file of the Civil Judge (Sr.Dn.) and JMFC, Nagamangala.
NC: 2023:KHC:21670
RSA No. 626 of 2007
The Trial Court dismissed the suit on the ground that the
plaintiff has not examined the attesting witness of the Will
and hence an appeal was filed in R.A.No.39/2006 and while
filing the appeal, an application was also filed under Order
41 Rule 27 of CPC and the Appellate Court dismissed the
appeal and the application. Hence, the present second
appeal is filed before this Court.
3. The learned counsel for the appellant would
contend that the dispute between the parties will be
adjudicated by examining the attesting witness and when a
prayer is made before the Appellate Court to permit the
appellant to lead oral evidence by examining the attesting
witness, the same has not been considered and the order
impugned requires interference. The learned counsel in
support of his arguments relied upon the judgment of the
Apex Court in the case of THE MUNICIPAL
CORPORATION OF GREATER BOMBAY v. LALA
PANCHAM AND OTHERS reported in AIR 1965 SC 1008,
wherein it is held that under Order 41 Rule 27 of CPC, the
Appellate Court has the power to allow a document to be
NC: 2023:KHC:21670
RSA No. 626 of 2007
produced and a witness to be examined. But the
requirement of the said Court must be limited to those
cases where it found it necessary to obtain such evidence
for enabling it to pronounce judgment. This provision does
not entitle the Appellate Court to let in fresh evidence at
the appellate stage where even without such evidence it
can pronounce judgment in a case. It does not entitle the
Appellate Court to let in fresh evidence only for the purpose
of pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the evidence that
the Appellant Court is empowered to admit additional
evidence. The power under clause (b) of sub-Rule (1) of
Rule 27 of Order 41 cannot be exercised for adding to the
evidence already on record except upon one of the grounds
specified in the provision. If the documents on record are
relevant on the issue of fraud the Court could well proceed
to consider them and decide the issue. But the Appellate
Court cannot order a fresh trial. Such a course is not
permissible under Order 41 Rule 27 of CPC. Hence, the
learned counsel prays this Court to set aside the order of
NC: 2023:KHC:21670
RSA No. 626 of 2007
the First Appellate Court in rejecting the application filed
under Order 41 Rule 27 of CPC.
4. Per contra, the learned counsel for respondent
Nos.1(a) and (b) not seriously objects for the same, but
contend that when an opportunity was given, not utilized
the opportunity and not examined the attesting witness
and the Trial Court rightly comes to the conclusion. The
First Appellate Court taking note of the averments made in
the application comes to the conclusion that the appellant
has not made out any ground to invoke Order 41 Rule 27 of
CPC and hence, the impugned order cannot be set aside.
5. Having heard the respective learned counsel and
also on perusal of the material available on record, the
plaintiff sought for the relief of declaration based on the
Will. Before the Trial Court the plaintiff examined herself
as P.W.1, but not examined the attesting witness and
hence the Trial Court comes to the conclusion that when
declaration is sought based on the Will, ought to have
examined the attesting witness and hence, I do not find
any error committed by the Trial Court. But when an
NC: 2023:KHC:21670
RSA No. 626 of 2007
application is filed under Order 41 Rule 27 of CPC to adduce
the evidence before the First Appellate Court, the First
Appellate Court ought to have considered the same. The
Apex Court in its judgment in the case of Lala Pancham
(supra), held that the First Appellate Court cannot permit
to let in fresh evidence. But in other words, it is held that
it is only for removing a lacuna in the evidence that the
Appellate Court is empowered to admit additional evidence.
This has not been considered by the First Appellate Court
and the First Appellate Court ought to have considered the
application filed under Order 41 Rule 27 of CPC, wherein
sought for permission to lead additional evidence. The
principle laid down by the Supreme Court in its judgment
referred supra, is very clear that it is only for removing a
lacuna in the evidence that the Appellate Court is
empowered to admit additional evidence. The First
Appellate Court ought to have allowed the application filed
under Order 41 Rule 27 of CPC and permitted the appellant
to examine the attesting witness to prove the Will, for
remaining lacunae the evidence but committed an error
NC: 2023:KHC:21670
RSA No. 626 of 2007
and consequently dismissed the appeal also. Hence, it
requires interference of this Court.
6. In view of the discussions made above I pass
the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated
24.11.2006, passed in R.A.No.39/2006, on
the file of the Civil Judge (Sr.Dn.) and
JMFC, Nagamangala, is set aside and the
matter is remitted back to the First
Appellate Court by allowing the application
filed under Order 41 Rule 27 of CPC.
(iii) The appellant is permitted to examine one
of the attesting witness before the
Appellate Court itself instead of sending
the matter to the Trial Court. The
Appellate Court after examining the
attesting witness shall consider the matter
and dispose of the appeal in accordance
with law.
NC: 2023:KHC:21670
RSA No. 626 of 2007
(iv) Both the parties are directed to appear
before the First Appellate Court on
21.07.2023, without expecting any notice
from the First Appellate Court and the First
Appellate Court is directed to dispose the
matter, expeditiously.
Sd/-
JUDGE
MD
