Karnataka High Court

Sri. Kalgudi Somashekhar vs Sri. Kalgudi Basavarajappa on 28 November, 2023

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                                                          NC: 2023:KHC-D:13912
                                                              RSA No. 100403 of 2018




                                   IN THE HIGH COURT OF KARNATAKA,
                                           DHARWAD BENCH

                             DATED THIS THE 28TH DAY OF NOVEMBER, 2023

                                                  BEFORE

                               THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                           REGULAR SECOND APPEAL NO.100403 OF 2018 (PAR)

                      BETWEEN:


                      SRI. KALGUDI SOMASHEKHAR
                      S/O. LATE KALGUDI KARABASAPPA,
                      AGE: 63 YEARS, OCC: AGRICULTURE,
                      R/O. D.NO.53 A, NEW DOOR NO.70,
                      4/15TH WARD, KAMPLI, TQ: HOSAPETE,
                      DISTRICT: BELLARI-583132.

                                                                         ...APPELLANT
                      (BY SRI R. K. KULKARNI, ADVOCATE)

                      AND:


                      1.     SRI KALGUDI BASAVARAJAPPA,
                             S/O. LATE KALGUDI KARABASAPPA,
         Digitally           SINCE DECEASED REPRESENTED BY
         signed by
         VISHAL              HIS L.RS.
VISHAL   NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:        1A.    SMT. VEERAMMA W/O. BASAVARAJ KALGUDI,
         2023.12.04          AGE: 63 YEARS, OCC: HOUSE HOLD WORK,
         12:48:19
         +0530               R/O: 15TH WARD, MAIN ROAD, DOOR NO.70 KAMPLI,
                             4/15TH WARD KAMPLI TQ: HOSAPETE
                             DISTRICT: BELLARY PIN CODE: 583132.

                      1B.    SRI VINAYAK S/O. BASAVARAJ KALGUDI
                             AGE: 36 YEARS, OCC: BUSINESS
                             R/O: 15TH WARD, MAIN ROAD, DOOR NO. 70 KAMPLI,
                             KAMPLI (TMC), TQ: HOSAPETE DISTRICT: BELLARY
                             PIN CODE: 583132.

                      1C.    SRI SHARANABASAPPA S/O. BASAVARAJ KALGUDI
                             AGE: 33 YEARS, OCC: BUSINESS
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                                    NC: 2023:KHC-D:13912
                                      RSA No. 100403 of 2018




      R/O: 15TH WARD, MAIN ROAD,
      DOOR NO. 70 KAMPLI, KAMPLI (TMC),
      TQ: HOSAPETE DISTRICT: BELLARY
      PIN CODE: 583132.

1D. SMT. JAYASUDHA W/O. DR. BASAVARAJ
    AGE: 37 YEARS, OCC: HOUSE HOLD WORK,
    R/O: 15TH WARD, MAIN ROAD, DOOR NO. 70 KAMPLI,
    KAMPLI (TMC), TQ: HOSAPETE DISTRICT: BELLARY
    PIN CODE: 583132.

1E.   SMT. CHETANA W/O. GURUNATH
      AGE: 34 YEARS, OCC: HOUSE HOLD WORK,
      R/O: 15TH WARD, MAIN ROAD, DOOR NO. 70 KAMPLI,
      KAMPLI (TMC), TQ: HOSAPETE DISTRICT: BELLARY
      PIN CODE: 583132.

2.    SRI. KALGUDI NANJUNDESHWAR,
      S/O. LATE KALGUDI KARABASAPPA,
      AGE: 65 YEARS, OCC: AGRICULTURE,
      R/O. SATYANARAYAN PETH,
      NEAR MALLIKARJUN TEMPLE,
      KAMPLI, TQ: HOSAPETE,
      DISTRICT:BELLARY-583132.

                                              ...RESPONDENTS

(BY   SRI SUNITHA P. KALASOOR, ADVOCATE FOR R1 (A TO E);
      NOTICE TO R2 IS SERVED)

     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGEMENT    &   DECREE    DATED   20.04.2018   PASSED   IN
R.A.NO.5052/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BALLARI, SITTING AT HOSAPETE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 10.08.2015, PASSED IN O.S. NO.106/2014 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C.,
HOSAPATE, DISMISSING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.

     THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                     NC: 2023:KHC-D:13912
                                       RSA No. 100403 of 2018




                           JUDGMENT

The short question in this appeal is based on the

substantial questions of law framed by this Court is "whether

the First Appellate Court was justified in not considering

IA.No.II filed by the plaintiff-appellant under Order XLI Rule

27 CPC at the time of deciding the appeal".

2. The present second appeal by the plaintiff

assailing the judgment and decree of the Courts below,

whereby, the suit seeking partition and separate possession

was dismissed.

3. The suit for partition and separate possession was

contested by the defendants and the suit was dismissed.

Assailing the judgment and decree passed by the Trial Court

an appeal was preferred by the plaintiff under Section 96 of

the Code of Civil Procedure, 1908 ("CPC" for short) and the

same was registered in R.A.No.5052/2015. Along with the

appeal, I.A.No.II was filed by the plaintiff-appellant herein

under Order XLI Rule 27 read with Section 151 CPC. The

First Appellate Court adjourned the matter to file objections

by the respondents to the said application. Objections were

NC: 2023:KHC-D:13912

filed by the defendants-respondents herein. The appeal

before the First Appellate Court came to be dismissed. While

dismissing the appeal, I.A.No.II filed by the applicant under

Order XLI Rule 27 read with Section 151 CPC has not

considered in the final order and no order came to be passed

on I.A.No.II. Assailing the said judgment and decree, this

second appeal is preferred by the plaintiff.

4. The appeal was admitted by this Court on

18.11.2023 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 R.K.Kulkarni, learned counsel appearing

for the appellant and Smt.Sunitha P.Kalasoor, learned

counsel appearing for the respondents.

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6. Without adverting to the rival contentions raised

by the parties and recording on the findings of the Courts

below, the appeal is liable to be allowed on the sole ground

by answering substantial question of law holding that, the

First Appellate Court was not justified in passing the final

order on merits without passing any orders on I.A.No.II filed

by the applicant-plaintiff under Order XLI Rule 27 CPC.

7. Perusal of the judgment and decree of the First

Appellate Court evidences that, there is no reference for

having considered I.A.No.II and any finding given there on.

There is no separate order passed on I.A.No.II and I.A.No.II

remains unconsidered.

8. The order sheet reveals that on 11.02.2016,

IA.No.II was filed and the matter stood adjourned for filing

of objections by the respondents-defendants and the

objections were filed by the respondents on 15.04.2016. It

was incumbent upon the First Appellate Court to pass order

and consider the application filed by the appellant under

Order XLI Rule 27 CPC for production of additional evidence

and in the absence of the same, non-consideration by the

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First Appellate Court while disposing the appeal, the

judgment and decree of the First Appellate Court warrants

interference.

9. 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, 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."

AIR 2009 SC 354

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10. The Apex Court held that when an application is

filed seeking for additional evidence Order XLI Rule 27 CPC,

it was the duty of the Court to consider the same on merits

along with the appeal.

11. Accordingly, the impugned order of the First

Appellate Court needs to be set aside and the matter be

remitted back to the First Appellate Court for consideration

of I.A.No.II filed by the appellant-plaintiff. In the result,

substantial questions of law are answered accordingly and

this Court pass the following:

ORDER

(i) The regular second appeal is hereby allowed.

(ii) The judgment and decree dated 20.04.2018 passed in R.A.No.5052/2015 on the file of the III Additional District and Sessions Judge, Ballari (Sitting at Hosapete) is set aside and the matter is remitted back to the First Appellate Court for fresh consideration along with I.A.No.II filed by the appellant-plaintiff under Order XLI Rule 27

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read with Section 151 CPC, in accordance with law.

(iii) Since the appeal is of the year 2018, the First Appellate Court is directed to dispose of the appeal as expeditiously as possible not later than six months from the date of appearance of the parties.