Karnataka High Court
Smt Hemavathi vs Smt K P Kalavathi on 11 November, 2024
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NC: 2024:KHC:45519
WP No. 22534 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 22534 OF 2024 (GM-FC)
BETWEEN:
1. SMT HEMAVATHI
D/O K PILLAPPA
AGED ABOUT 32 YEARS
2. SRI NARAYANASWAMY
S/O K PILLAPPA
AGED ABOUT 28 YEARS
3. SRI GIRISH
S/O K PILLAPPA
AGED ABOUT 25 YEARS
4. SMT. NIRMALAMMA
Digitally
D/O LATE A.H. VENKATESH
signed by
AGED ABOUT 45 YEARS
SUNITHA K S
Location: 5. SRI RAMAKRISHNA
HIGH COURT S/O LATE A H VENKATESH
OF AGED ABOUT 25 YEARS
KARNATAKA
6. SRI GOVARDHAN
S/O LATE A H VENKATESH
AGED ABOUT 24 YEARS
PETITIONERS 1 TO 6 ARE
R/AT ARURU VILLAGE,
MANDIKAL HOBLI
CHICKBALLAPUR TALUK AND DISTRICT - 562101
-2-
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WP No. 22534 of 2024
7. SMT VENKATALAKSHMAMMA
W/O KRISHNAPPA
AGED ABOUT 65 YEARS
R/AT HONNENAHALLI VILLAGE,
KASABA HOBLI,
CHICKABALLAPUR TALUK AND DISTRICT - 562101
8. SMT SARASWATHAMMA
W/O KRISHNAPPA
AGED ABOUT 40 YEARS
R/AT HONNENAHALLI VILLAGE
KASABA HOBLI,
CHICKABALLAPUR TALUK AND DISTRICT - 562101
9. SRI GOPALAKRISHNA @ VENUGOPALAKRISHNA
S/O HANUMANTHU
AGED ABOUT 39 YEARS
R/AT ARURU VILLAGE, MANDIKAL HOBLI
CHICKBALLAPUR TALUK AND DISTRICT - 562101
10. SMT NARAYANAMMA
W/O K PILLAPPA
AGED ABOUT 51 YEARS
R/AT ARURU VILLAGE, MANDIKAL HOBLI
CHICKBALLAPUR TALUK AND DISTRICT - 562101
11. SRI PILLAKRISHNAPPA
S/O LATE VENKATARAYAPPA
AGED ABOUT 70 YEARS
R/AT KOLAVANAHALLI VILLAGE,
NANDI HOBLI,
CHICKABALLAPUR TALUK AND DISTRICT - 562101
...PETITIONERS
(BY SRI. S R SREEPRASAD, ADVOCATE)
AND:
1. SMT K P KALAVATHI
AGED ABOUT 31 YEARS
D/O K PILLAPPA, W/O NARASAREDDY
-3-
NC: 2024:KHC:45519
WP No. 22534 of 2024
R/AT KONDAVABANAHALLI VILLAGE
SOMENAHALLI HOBLI,
GUDIBANDE TALUK
CHIKKABALLAPUR DISTRICT - 562101
2. SMT CHANNAMMA
W/O LATE K P PILLAPPA
AGED ABOUT 53 YEARS
ARURU VILLAGE, MANDIKAL HOBLI
CHIKKABALLAPUR TALUK AND DISTRICT.
3. SMT. MUNILAKSHMAMMA
W/O VENKATESHAPPA
AGED ABOUT 51 YEARS
UPPARAHALLI VILLAGE, MANHENAHALLI HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT - 562 101.
...RESPONDENTS
(BY SRI. RAMESHA H. E., ADVOCATE FOR R-1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 24/07/2024 PASSED ON IA-3 FILED
UNDER ORDER 41 RULE 27 CPC REJECTING THE IA PENDING
APPEAL IN RA NO. 15/2023 ON THE FILE OF THE PRL. JUDGE,
FAMILY COURT, CHIKKABALLAPUR (EXERCISING THE POWERS
OF DISTRICT JUDGE), PRODUCED VIDE ANN-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
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NC: 2024:KHC:45519
WP No. 22534 of 2024
ORAL ORDER
The petitioners aggrieved by the order on I.A No.III
dated 24.07.2024 passed in R.A.No.15/2023 by the
Principal Judge, Family Court, Chikkaballapur.
2. Brief facts leading rise to the filing of this writ
petition are as under:
The respondent No.1 filed a suit in O.S.No.584/2007
for partition and separate possession. The said suit was
dismissed vide judgment dated 06.04.2016 by the learned
Additional Senior Civil Judge and JMFC, Chikkaballapur.
The respondent No.1 aggrieved by the judgment and
decree passed in the aforesaid suit filed the appeal in
R.A.No.15/2023 on the file of Principal Judge, Family
Court, Chikkaballapur. In the appeal, the petitioner Nos.2
to 4 filed an application under order 41 Rule 27 of CPC
seeking to adduce additional evidence. The said
application was opposed by the respondents by filing
objections. The first Appellate Court rejected the
application vide order dated 24.07.2024. The petitioners
NC: 2024:KHC:45519
aggrieved by the order on I.A.No.III, filed this writ
petition.
3. Notice was issued to the respondents, despite
service of notice, the respondents remained
unrepresented.
4. Heard the learned counsel for the petitioners.
5. Learned counsel for the petitioners submits that
the petitioner Nos.2 to 4 filed an application for production
of additional evidence. The trial court ought to have
considered the said application along with the main
appeal, on the contrary, the trial Court has taken
application as threshold and rejected the said application.
He submits that the procedure adopted by the first
Appellate Court is contrary to the law laid down by the
Hon'ble Apex Court in the case of M/S. EASTERN
EQUIPMENT & SALES LTD VS ING. YASH KUMAR KHANNA
reported in AIR 2008 SC 2360. Hence, on these grounds
prays to allow the writ petition.
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6. Perused the records and considered the
submissions of the learned counsel for the petitioners.
7. It is not in dispute that the respondents filed a
suit for partition and separate possession against the
petitioners. The said suit was dismissed. The respondents
aggrieved by the judgment passed in the aforesaid suit
preferred an appeal. In the said appeal, the petitioners
filed an application for production of additional evidence
under Order 41 Rule 27 CPC. It is well settled that when
an application for production of additional evidence is filed,
it has to be heard along with the main appeal. Admittedly,
the first Appellate Court rejected the application filed by
the petitioners under Order 41 Rule 27 CPC without
hearing the appeal on merits. The first Appellate Court
has committed an error in passing the order on Order 41
Rule 27 CPC without considering along with the main
appeal. The order passed by the first Appellate Court is
contrary to the law laid by the Hon'ble Apex Court in the
case of M/S. EASTERN EQUIPMENT & SALES LTD (referred
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supra). Hence, in view of the above discussion, the
impugned order is liable to be set aside.
8. Accordingly, I proceed to pass the following:
ORDER
The writ petition is allowed.
Interim order on I.A.No.III dated
24.07.2024, passed in R.A.No.15/2023, by the
learned Principal Judge, Family Court,
Chikkaballapur is set aside. The first Appellate
Court shall decide the pending appeal along with
I.A.No.III and pass appropriate order, in
accordance with law.
It is made clear that this court has not
made any adjudication on merits in issue.
All the contentions of the parties are kept
open.
SD/-
(ASHOK S. KINAGI)
JUDGE
sks
