Karnataka High Court
Mohammadgouse vs Sha Abdulhasan on 17 November, 2023
Bench: K.S.Hemalekha
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NC: 2023:KHC-D:13365
RSA No. 100924 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100924 OF 2016
(DEC/INJ)
BETWEEN:
1. MOHAMADGOUSE
S/O. NANNESAB LOHAR @ SHIKALGAR
AGE: 51 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. ABDULNABI
S/O. NANNESAB LOHAR @ SHIKALGAR
AGE: 49 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANTS
(BY SRI DINESH M. KULKARNI, ADVOCATE)
AND:
1. SHA ABDULHASAN
S/O MOHAMMADALI LOHAR @ SHIKALGAR
Digitally AGE: 58 YEARS, OCC: BUSINESS,
signed by
VISHAL
VISHAL R/O: RANEBENNUR, TQ: RANEBENNUR,
NINGAPPA
NINGAPPA PATTIHAL DIST: HAVERI-581115.
PATTIHAL Date:
2023.11.18
14:46:11 2. MOHAMMADGOUSE
+0530
S/.O MOHAMMADALI LOHAR @ SHIKALGAR
AGE ABOUT 54 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...RESPONDENTS
(BY SRI VISHWANATH L.HEGDE, ADVOCATE FOR
SRI M. H. PATIL, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 08.07.2016 PASSED IN
R.A.NO.46/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
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RSA No. 100924 of 2016
JUDGE, RANEBENNUR, DISMISSING THE APPEAL, AND CONFIRMING
THE JUDGMENT AND DECREE DATED 01.04.2015, PASSED IN
O.S.NO. 159/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND II ADDITIONAL JUDICIAL MAGISTRATE FIRST CLASS,
RANEBENNUR, DISMISSING THE SUIT FILED FOR DECLARATION AND
MANDATORY INJUNCTION.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs in O.S.No.159/2009 on the file of the
Additional Civil Judge and II Additional JMFC, Ranebennur
and the appellants in R.A.No.46/2015 on the file of the
Additional Senior Civil Judge, Ranebennur have preferred this
second appeal under Section 100 of the Code of Civil
Procedure, 1908 ("CPC" for short) to set aside the judgment
and decree of the Courts below.
2. The suit for declaration and mandatory injunction
was contested by the defendants and the suit of the plaintiffs
was dismissed. Assailing the judgment and decree passed by
the Trial Court an appeal was preferred under Section 96 of
CPC and the same was registered as R.A.No.46/2015 before
the Additional Senior Civil Judge, Ranebennur.
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3. I.A.No.III was filed by the plaintiffs, appellants
herein under Order XLI Rule 27 read with Section 151 of
CPC, wherein, the plaintiffs prayed to produce the additional
evidence. The First Appellate Court ordered notice on the
said application and as well as on the main appeal. The
Appeal before the First Appellate Court came to be
dismissed, while dismissing the appeal, I.A.No.III filed by the
applicant under Order XLI Rule 27 read with Section 151 of
CPC was not considered in the final order. Assailing the
judgment and decree, this second appeal has been preferred
by the plaintiffs.
4. The appeal was admitted by this Court on
07.11.2023 to consider the following substantial questions of
law.
1) Whether the First Appellate Court was justified
in not passing the order on I.A. invoking under
Order XLI Rule 27 of CPC before deciding the
appeal?
2) Whether the judgment and decree of the First
Appellate Court warrants any interference?
5. Heard Sri Dinesh M.Kulkarni learned counsel
appearing for the appellants and learned counsel Sri
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RSA No. 100924 of 2016
Vishwanath L. Hegde for Sri M.H.Patil learned counsel for the
respondents.
6. The short questions in this appeal as substantial
questions framed by this Court is whether the First Appellate
Court was justified in not considering I.A.No.III filed under
Order XLI Rule 27 of CPC at the time of deciding of the
appeal. Without adverting to the rival contentions recording
the findings of the Courts below, the appeal is liable to be
allowed on the sole ground by answering the substantial
questions of law holding that the First Appellate Court was
not justified in considering the matter on merits without
passing any orders on I.A.No.III filed by the applicant under
Order XLI Rule 27 of CPC.
7. The Apex Court in the case of Jatinder Singh &
another (Minor Through Mother) Vs. Mehar Singh and
others1 has held at paragraph No.4 as under:
"While deciding the second appeal, however, the
High Court had failed to take notice of the application
under Order 41 Rule 27 of the Code of Civil procedure
and decide whether additional evidence could be
permitted to be admitted into evidence. In our view,
AIR 2009 SC 354
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RSA No. 100924 of 2016
when an application for acceptance of additional
evidence under Order 41 Rule 27 of the Code of Civil
Procedure was filed by the appellants, it was the duty
of the High Court to deal with the same on merits.
That being the admitted position, we have no other
alternative but to set aside the judgment of the High
Court and remit the appeal back to it for a decision
afresh in the second appeal along with the application
for acceptance of additional evidence in accordance
with law."
The apex Court held that when an application is filed
seeking for additional evidence under Order XLI Rule 27 of
CPC, it was the duty of the Court to consider the same on
merits along with the appeal.
8. Perusal of the judgment and decree of the First
Appellate Court does not show any reference of I.A.No.III
having been considered and any finding given there on.
There is no separate order passed on I.A.No.III, I.A.No.III
has remained unconsidered. I.A.No.III is filed by the
applicant/appellant in light of the findings recorded by the
Trial Court at paragraph No.18 of the judgment. It was
incumbent upon the First Appellate Court to consider the
application filed by the applicant under Order XLI Rule 27 of
CPC for production of additional evidence and in the absence
of non-consideration by the First Appellate Court while
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RSA No. 100924 of 2016
disposing the appeal, this Court is of the considered view
that the First Appellate Court shall decide the appeal afresh
on merits in accordance with law along with the application
for additional evidence. Accordingly, the impugned order of
the First Appellate Court needs to be set aside and the
matter requires to be remitted back to the First Appellate
Court as the same is unsustainable for non-consideration of
I.A.No.III filed for additional evidence by the appellants. In
the result, the substantial question of law is answered
accordingly and this Court pass the following order:
ORDER
(i) The regular second appeal is hereby
allowed.
(ii) The judgment and decree dated 08.07.2016
passed in R.A.No.46/2015 on the file of the
Additional Senior Civil Judge, Ranebennur is
hereby set aside and the matter is
remitted back to the First Appellate Court
for fresh consideration along with I.A.No.III
filed under Order XLI Rule 27 read with
Section 151 of CPC, in accordance with law.
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RSA No. 100924 of 2016
(iii) The parties are hereby directed to appear
before the First Appellate Court on
07.12.2023 without waiting any further
notice from the Court.
Sd/-
JUDGE
EM, CT: UMD
