passed by II Addl. Senior Civil Judge & JMFC., Kolar, in
2. Brief facts as stated are that appellant herein
and for creating charge over properties ('suit properties').
defendant was solemnized at Mogilahalli village. And at
and to defendant apart from Rs.10,000/- as dowry. It was
for few years, during which plaintiff no.2 was born.
plaintiff no.1 and instigated defendant to ill-treat her.
3. She alleged defendant had relationship outside
Akkemma. And as defendant failed to provide food,
them out of matrimonial home in last week of June, 2001.
plaintiff no.1. When, plaintiff no.1 fell ill, she had to avail
financial assistance from her mother and brothers. It was
brothers. But they were jointly cultivating ancestral joint
family properties. It was stated plaintiffs no.1 and 2
maintenance. It was stated as she was neither owning
plaintiffs. Therefore, they filed suit seeking Rs.800/- and
defendant's share in ancestral joint family properties.
4. On appearance, defendant filed written
village and did not return even after convening panchayat.
and married him. Thereafter, he married Susheelamma at
Mogilahalli village on 26.11.1998. Defendant further
Narayanaswamy @ Byrareddy. Under above
circumstances, plaintiffs were not his wife and daughter.
5. It was also contended, suit properties were in
joint possession with his brothers. Therefore, without
effecting partition, relief sought could not be granted. On
said grounds, sought dismissal of suit.
6. Based on pleadings, trial Court framed
7. To substantiate their case, plaintiff no.1
marked Exhibits P1 to P22. In rebuttal, defendant
8. On consideration, trial Court answered issues
9. Aggrieved, defendant filed R.A.no.122/2011
iii) What order?
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10. On consideration, first appellate Court
answered point no.1 in negative, point no.2 partly in
affirmative and point no.3 by allowing appeal in part,
confirming award of maintenance to plaintiffs, but setting-
aside charge created over suit properties. Aggrieved,
defendant filed this appeal.
11. Sri N. Murli, learned counsel for defendant
submitted, appeal was against concurrent error in
impugned judgment and decrees calling for interference.
It was submitted suit was filed claiming maintenance of
Rs.800/- per month and Rs.400/- per month by plaintiffs
respectively. Though, marriage between plaintiff no.1 and
defendant was not in dispute, plaintiff no.1 had left him,
married Sri Narayanaswamy @ Byrareddy and begot
plaintiff no.2. It was submitted, Ex.D7 - Voters list of
Hodali village, showed Narayanaswamy @ Byrareddy as
husband of plaintiff no.1. Even PW.4, specifically stated
plaintiff no.1 married PW.2. Trial Court also observed
plaintiff no.1 was residing in same village as PW.2, but
failed to appreciate same in context and erroneously held
same would not establish that they resided together.
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12. Even reasoning that Exs.D6 and D7 showed
plaintiff no.1 as residing at Hodali would not apply to
plaintiff no.2, who was residing at Pachamakalahalli
village. It was contended, conclusions drawn by first
appellate Court were contrary to material on record
thereby rendering its conclusions perverse. On said
erroneous conclusion contention about birth of plaintiff
no.2 from marriage with Narayanaswamy was negatived.
13. It was further submitted, suggestions made by
plaintiffs to DW.2 in cross-examination that PW.2 and
plaintiff no.1 were sister-in-law and brother-in-law, there
was no illicit relationship between them etc. were denied.
Impugned judgment and decree were in ignorance of
same.
14. It was further submitted, defendant had filed
application under Order XLI Rule 27 of CPC for additional
evidence along with Grant order passed by Deputy
Tahsildar under Sandhya Suraksha Yojane, Ration Card
and Voters list showed name Smt.Neelamma as wife of HS
Byrareddy. It was submitted, without proper
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consideration, application was rejected. Further, as per
Ex.D11 - School certificate, date of birth of plaintiff no.2
was 30.05.1990. Therefore, she would be aged 25 years
at time of filing of this appeal and disentitled for
maintenance.
15. In view of above, substantial questions of law
about improper rejection of application for additional
evidence and conclusions arrived at ignoring relevant
material rendering impugned judgment and decree as
perverse, arose for consideration and sought for
answering same in favour of appellant and allow appeal.
16. Heard learned counsel for appellant, perused
impugned judgment and decree and copies of pleadings
and deposition made available by learned counsel for
appellant.
17. Respondents are served and unrepresented.
18. This appeal under Section 100 of CPC is by
defendant in a suit for maintenance and creation of charge
for maintenance amount on suit properties.
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19. Suit is based on plaintiff no.1 claiming to have
married defendant and begot plaintiff no.2, and as
defendant threw them out of house, failed and neglected
to maintain them even when having income from joint
cultivation of suit properties with his brothers.
20. On other hand, defendant admitted marriage
with plaintiff no.1, but opposed suit claim on ground that
suit properties were ancestral joint family properties. It is
alleged shortly after marriage plaintiff no.1 left him and
married Narayanaswamy @ Byrareddy and begot plaintiff
no.2 from him.
21. To substantiate claim, plaintiffs were examined
as PWs.1 and 4 and deposed in terms of plaint and got
marked genealogical tree as Ex.P.1 and RTC Extracts as
Exs.P2 to P22. Plaintiffs also examined PWs.2 and 3,
residents of Hodali and Pachmakalahalli villages. While,
defendant examined himself as DW.1 and three
independent witnesses as DWs.2 to 4 and produced
genealogical tree as Exs.D1, wedding invitation card as
Ex.D2, Voters list as Exs.D3, D4, D7 and D12, copy of
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Ration card as Ex.D6, Residential certificates as Exs.D8 to
10, School certificate of plaintiff no.2 as Ex.D11.
22. While passing trial Court noted that plaintiff's
suit was earlier decreed and remanded back after
defendant filed appeal along with application for additional
evidence for production of Exs.D6 to D12. It examined
Ex.D6 was Ration card of Narayanswamy @ Byrareddy
containing names of his three sons, daughter-in-law and
Sowbhagya, but omitted name of plaintiff no.1. Hence it
was disbelieved. Even conclusion on Ex.D7 - voters list
was similar. It also noted house numbers of plaintiff no.2
and PW.2 were different; while, Exs.D8 to 10 - Residential
Certificates were discarded on ground that they were
post-lite and without examining authors. In Ex.D11 - Birth
Certificate of plaintiff no.2, trial Court noted name of
father was Ashwathnarayana Reddy, contradicting
defendant's case. It also noted Ex.D12 - Voters list
showed name of Narayanswamy's wife as Neelamma
differed from name of plaintiff no.1 as Leelamma and even
house numbers were different. It therefore concluded
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defendant failed to substantiate his contention even on
basis of additional evidence.
23. In appeal, defendant sought to produce
additional evidence and filed I.As.no.I and II. On point
no.1 regarding additional evidence, it observed documents
sought to be produced as additional evidence were Govt.
orders, ration cards and Voters list of H.S.Byrareddy. It
firstly noted grant order under Sandhya Suraksha Yojane
passed by Deputy Tahsildar sought to be relied upon was
in favour of Smt.Neelamma W/o Narayanaswamy of
Pachmakalahalli village, but there was no material to show
that plaintiff no.1 was also known as Neelamma.
Secondly, it observed other documents sought to be
produced were Ration Card and Voters list of
H.S.Byrareddy, but as defendant had already produced
Ration Card and Voters list as Exs.D6 and D7, there was
no need/justification for allowing I.As.no.I and II.
24. Thereafter, it re-appreciated material on
record. Since plaintiffs and defendant relied on respective
genealogical tree, it compared same and found in Ex.P1,
defendant was shown to have two wives namely
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Leelamma and Susheelamma, but Ex.D1 showed only
name of Susheelamma. It however observed neither party
examined authors, but defendant had admitted about his
marriage with plaintiff no.1 in his written statement. It
however noted that Exs.P2, P7 and P10 - RTCs showed
defendants brother Chowdreddy had purchased said
properties, while Exs.P3 to 6, P8, P9, P11, P20 and P22
showed Chowdreddy as owner/occupier and his name
entered on basis of Pouthi Varasu i.e., as legal heir.
Therefore, it concluded that items no. 1 to 19 belonged to
Chowdreddy brother of defendant and noting that
plaintiffs had failed to produce any material to show
interest of defendant in said properties, it held plaintiffs
would not be entitled for entry of their names for creating
charge on suit properties.
25. While concurring with findings on entitlement
for maintenance, on perusal of documents produced by
defendants, it observed Exs.D4-Voters list showed
Neelamma as wife of Narayanaswamy and resident of
house no.59 of Pachmakalahalli village; whereas Exs.D6
and D7 - ration Card and Voters list relied upon to
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establish plaintiff no.2 as daughter of H.S. Byrareddy
Showed plaintiff no.2 resident of Hodali. It further noted
Ex.D11 showed plaintiff no.2 as daughter of
Ashwathnarayanareddy not only contradicted defendants
case, but amounted to admission that plaintiff no.2 was
his daughter.
26. Insofar as marriage between plaintiff no.1 and
defendant, it noted admission by defendant in cross-
examination that their marriage was performed in year
1989 and as per Ex.D11-plaintiff no.2 was born on
30.05.1990 and applying Section 112 of Evidence Act, it
drew presumption about plaintiff no.2 being daughter of
defendant as she was born during subsistence of
marriage. On said findings, it concurred with findings of
trial Court insofar as entitlement of maintenance.
27. Though learned counsel for defendant
vehemently contended findings were contrary to law and
perverse, especially with reference to deposition of DW-2,
he admits about marriage with plaintiff no.1 and
defendant and states plaintiff no.1 had left defendant and
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residing in Pachmakalahalli, but, DW.2 was not residing in
said village or Hodali.
28. DW.1 further deposed, that due to marriage of
plaintiff no.1 with Narayanaswamy, defendant became
drunkard and immersed in debt. Therefore, his father sold
his share in suit properties. He further deposed plaintiff
had sufficient means to maintain herself, as she owned 30
sheep and Cows. Said deposition would stretch far beyond
pleading and defence setup by defendant. It is settled law,
no amount of evidence can be looked into without
pleading.
29. In any case, DW.2 admits that plaintiff no.1
was wife of defendant and birth of daughter - Soubhagya
to defendant and plaintiff no.1. His reply that he does not
know to suggestion that defendant was mentally alright
was having sufficient income from cultivation, would
render his deposition suspect. In view of contradictions
and deposition going far beyond pleadings/ defence setup
by defendant, same was rightly discarded. In view of
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above, there would be no substance in contention about
impugned judgment and decree suffering from perversity.
30. Insofar as ground urged about improper
rejection of applications for additional evidence by first
appellate Court, Hon'ble Supreme Court in case of Union
of India v. Ibrahim Uddin reported in (2012) 8 SCC
148 held:
"36. The general principle is that the appellate court
should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as
an exception, Order 41 Rule 27 CPC enables the
appellate court to take additional evidence in
exceptional circumstances. The appellate court may
permit additional evidence only and only if the
conditions laid down in this Rule are found to exist. The
parties are not entitled, as of right, to the admission of
such evidence. Thus, the provision does not apply,
when on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment.
The matter is entirely within the discretion of the court
and is to be used sparingly. Such a discretion is only a
judicial discretion circumscribed by the limitation
specified in the Rule itself. (Vide K. Venkataramiah v. A.
Seetharama Reddy [AIR 1963 SC 1526] , Municipal
Corpn. of Greater Bombay v. Lala Pancham [AIR 1965
SC 1008] , Soonda Ram v. Rameshwarlal [(1975) 3
SCC 698 : AIR 1975 SC 479] and Syed Abdul
Khader v. Rami Reddy [(1979) 2 SCC 601 : AIR 1979
SC 553] .)
37. The appellate court should not ordinarily allow new
evidence to be adduced in order to enable a party to
raise a new point in appeal. Similarly, where a party on
whom the onus of proving a certain point lies fails to
discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the court can, in
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NC: 2025:KHC:10464
such a case, pronounce judgment against him and does
not require any additional evidence to enable it to
pronounce judgment. (Vide Haji Mohammed
Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2
SCC 493 : AIR 1978 SC 798] )
38. Under Order 41 Rule 27 CPC, the appellate court
has the power to allow a document to be 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 appellate court is empowered to
admit additional evidence. (Vide Lala Pancham [AIR
1965 SC 1008] .)
39. It is not the business of the appellate court to
supplement the evidence adduced by one party or the
other in the lower court. Hence, in the absence of
satisfactory reasons for the non-production of the
evidence in the trial court, additional evidence should
not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the
indulgence of being allowed to give further evidence
under this Rule. So a party who had ample opportunity
to produce certain evidence in the lower court but failed
to do so or elected not to do so, cannot have it
admitted in appeal. (Vide State of U.P. v. Manbodhan
Lal Srivastava [AIR 1957 SC 912] and S.
Rajagopal v. C.M. Armugam [AIR 1969 SC 101] .)
40. The inadvertence of the party or his inability to
understand the legal issues involved or the wrong
advice of a pleader or the negligence of a pleader or
that the party did not realise the importance of a
document does not constitute a "substantial cause"
within the meaning of this Rule. The mere fact that
certain evidence is important, is not in itself a sufficient
ground for admitting that evidence in appeal.
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NC: 2025:KHC:10464
41. The words "for any other substantial cause" must
be read with the word "requires" in the beginning of the
sentence, so that it is only where, for any other
substantial cause, the appellate court requires
additional evidence, that this Rule will apply e.g. when
evidence has been taken by the lower court so
imperfectly that the appellate court cannot pass a
satisfactory judgment.
42. Whenever the appellate court admits additional
evidence it should record its reasons for doing so (sub-
rule (2)). It is a salutary provision which operates as a
check against a too easy reception of evidence at a late
stage of litigation and the statement of reasons may
inspire confidence and disarm objection. Another
reason of this requirement is that, where a further
appeal lies from the decision, the record of reasons will
be useful and necessary for the court of further appeal
to see, if the discretion under this Rule has been
properly exercised by the court below. The omission to
record the reasons must, therefore, be treated as a
serious defect. But this provision is only directory and
not mandatory, if the reception of such evidence can be
justified under the Rule.
43. The reasons need not be recorded in a separate
order provided they are embodied in the judgment of
the appellate court. A mere reference to the peculiar
circumstances of the case, or mere statement that the
evidence is necessary to pronounce judgment, or that
the additional evidence is required to be admitted in the
interests of justice, or that there is no reason to reject
the prayer for the admission of the additional evidence,
is not enough compliance with the requirement as to
recording of reasons.
44. It is a settled legal proposition that not only
administrative order, but also judicial order must be
supported by reasons, recorded in it. Thus, while
deciding an issue, the court is bound to give reasons for
its conclusion. It is the duty and obligation on the part
of the court to record reasons while disposing of the
case. The hallmark of order and exercise of judicial
power by a judicial forum is for the forum to disclose its
reasons by itself and giving of reasons has always been
insisted upon as one of the fundamentals of sound
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administration of the justice delivery system, to make it
known that there had been proper and due application
of mind to the issue before the court and also as an
essential requisite of the principles of natural justice.
The reason is the heartbeat of every conclusion. It
introduces clarity in an order and without the same, the
order becomes lifeless. Reasons substitute subjectivity
with objectivity. The absence of reasons renders an
order indefensible/unsustainable, particularly when the
order is subject to further challenge before a higher
forum. Recording of reasons is the principle of natural
justice and every judicial order must be supported by
reasons recorded in writing. It ensures transparency
and fairness in decision-making. The person who is
adversely affected must know why his application has
been rejected. (Vide State of Orissa v. Dhaniram
Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49 : AIR
2004 SC 1794] , State of Uttaranchal v. Sunil Kumar
Singh Negi [(2008) 11 SCC 205 : (2008) 2 SCC (L&S)
1093] , Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity [(2010) 3 SCC 732 : AIR 2010 SC 1285]
and Sant Lal Gupta v. Modern Coop. Group Housing
Society Ltd. [(2010) 13 SCC 336 : (2010) 4 SCC (Civ)
904] )
45. In City Improvement Trust Board v. H.
Narayanaiah [(1976) 4 SCC 9 : AIR 1976 SC 2403] ,
while dealing with the issue, a three-Judge Bench of
this Court held as under : (SCC p. 20, para 28)
"28. ... We are of the opinion that the High Court should
have recorded its reasons to show why it found the
admission of such evidence to be necessary for some
substantial reason. And if it found it necessary to admit
it, an opportunity should have been given to the
appellant to rebut any inference arising from its
existence by leading other evidence."
(emphasis added)
A similar view has been reiterated by this Court
in Basayya I. Mathad v. Rudrayya S. Mathad [(2008) 3
SCC 120].
46. A Constitution Bench of this Court in K.
Venkataramiah [AIR 1963 SC 1526] , while dealing with
the same issue held : (AIR p. 1529, para 13)
"13. It is very much to be desired that the courts of
appeal should not overlook the provisions of clause (2)
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NC: 2025:KHC:10464
of the Rule and should record their reasons
for admitting additional evidence. ... The omission to
record the reason must therefore be treated as a
serious defect. Even so, we are unable to persuade
ourselves that this provision is mandatory."
(emphasis added)
In the said case, the Court after examining the record
of the case came to the conclusion that the appeal was
heard for a long time and the application for taking
additional evidence on record was filed during the final
hearing of the appeal. In such a fact situation, the
order allowing such application did not vitiate for want
of reasons.
47. Where the additional evidence sought to be
adduced removes the cloud of doubt over the case and
the evidence has a direct and important bearing on the
main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be
permitted on record, such application may be allowed.
48. To sum up on the issue, it may be held that an
application for taking additional evidence on record at a
belated stage cannot be filed as a matter of right. The
court can consider such an application with
circumspection, provided it is covered under either of
the prerequisite conditions incorporated in the statutory
provisions itself. The discretion is to be exercised by the
court judicially taking into consideration the relevance
of the document in respect of the issues involved in the
case and the circumstances under which such an
evidence could not be led in the court below and as to
whether the applicant had prosecuted his case before
the court below diligently and as to whether such
evidence is required to pronounce the judgment by the
appellate court. In case the court comes to the
conclusion that the application filed comes within the
four corners of the statutory provisions itself, the
evidence may be taken on record, however, the court
must record reasons as on what basis such an
application has been allowed. However, the application
should not be moved at a belated stage."
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31. It is seen while passing impugned judgment
and decree, first appellate Court examined material
sought to be produced, its relevancy and need for
additional evidence for passing judgment.
32. It noted defendant had earlier filed application
for additional evidence and got matter remanded from
first appellate Court and after remand got marked Exs.D6
to D12 which included Ex.D6 - ration card of
Narayanaswamy and Voters list - Ex.D7. It noted
appellant was once again seeking to produce Ration Card
and Voters List. Therefore, it held additional evidence as
not necessary to pass judgment. Rejection of application
for additional evidence after consideration on merits
adhering to principles of law would not give rise to
substantial question of law. Hence, following
ORDER
Appeal is dismissed.
No order as to costs.
Sd/-
(RAVI V HOSMANI)
JUDGE
AV
