IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16"' DAY or-* NOVEMBER,
BEFORE ' 3
THE HON'BLE MR. JUSTICE A.N. vEI§3»LJ>GOP£'Ti;1fxv-.F.;%Z{:_',3:\I\ii)'A--.V f
WRIT PETITION NO.26679/2010:"~(fS%VI:C.t%5C')V"'
BETWEEN:
1.
Both are Wat"Sajjehoisabalifi.T' .
Dodderi Hobii, _ ' ' "
Sri Butharaju
S/o late Sri Thimmappaiah, .
@ Thimmanna, J
Aged about 45 years.
Lakshmamma
D/0 Sri ThimrT_jap;?;Eai_ahv,::'--'
@ Thimmanbriayy T"
Aged about --'w'..17ii.)/'15?i3rs2".' ' '
Madhugiri Taiuiz,
I "{ By S rjj ari sh, "Ad~\x.._.). «
'ANL>j:W* * '
Gu.rL;§3rasaT§!i'j 'V
S/0'-4«Chi_kka.ra'ngappa
Aged about 15 years.
.{_'T»i"3'io'TrL1"LT..iA Ranganatha
S/0 Chikkarangappa
' Aged about 13 years.
...PETITIONERS
Respondents No. 2 and 3 are minors
Represented by their natural guardian mother
Smt.Bhagyamma.
3. Thimmakka
W/o late Rangashamaiah
Aged about 70 years.
4. Govindappa
S/o late Rangashamaiah
Aged about 51 years.
5. Mudlappa
S/o late Rangashamavian
Aged about 45 years.
6. Rajanna ‘
S/o late Rang..a«sha-maiéah _,
Aged about_V4:-Q yyears..g
7. Mudlappa ‘:
S/o Biit’n’annga;; _ — -.
Aged about 63~.’vya_a”i*s.
8. B.Govindd.appya A A
S/o late B13-thavnna-__ V
Aged’ about 615 “years.”
” All “arer/’atl Sajjehosahalli
A Doddgeiriy Hoblgi’;
‘— ‘Ma-d hug i’i’-i_TalL:. k”.
K …RESPONE)ENTS
{Eiy M/s.C.V”R:C§opala Swamy & Associates, Advs. for R9)
it This ixvrit petition is filed under Articles 226 and 227 of
thefjonstitution of India, praying to set aside the order dated
_j~.___”O’S.Ci8.2010, passed on I.A.No.11 filed under Section 151 of
A ‘Cl?Ciin R.A.i\£o.l6S/2005, on the file of Civil Judge (Sr.Dn.) at
Madugiri, vide Annexure-A and consequently allow
application I.A.No.11 filed under section 151 of CFC.» in
R.A.§\io.16S/2005, on the file of Civil Judge (Sr._4E)n;~)u_4i~at
Madugirl on the facts and circumstance of the case.___ – .V
This petition coming on for preliminary hefairirigoinf
group this day, the Court made the following:
QRDER
Respondents 1 & 2 havefiied R.VA-.l\lo.165[IZOQ.S_HiVn_.’3the
Court of Civil Judge (Sr. E)lvn.,)’ifia,dhu_giri’,”qljestioivning the
decree dated 21.10.2005′ :.:.tfd.s..alsl;;.ii16/1999 by the
Civil Judge (Jr. Dix/n.,) ‘&””l.’..hA:e=:V’~.{petitioners are
respondents petitioners had
filed LA Vfrjecall the order dated
29.10.2002; so .theWrnarking of documents,
other than along with LA No.8 filed
by the appellants. V-.The”‘appli<:.ation has been dismissed on the
"vegrovundvn'"that'.L:'thecourtmcannot sit as appellate authority to
passed on 29.10.2009 and the course open
theta-pp|ig_:a'ntA.:"l's to question the order before the appellate
/"
4. The appellate court having ordered that the
documents produced aiong with I.As No.6 & 7′
considered along with main, has committed
impropriety and iilegality in permitting the=–d:ovcu’ments.,,u
produced aiong with I.As No.6 8: 7 to:’».§:ie :rnaa.rl<ed,_.'wh'en'"it"-hAas;_*é
allowed I.A No.8, which had withV'it.._onlyi'four
No.8 having been allowed, at the "to-ur:v.jdocuments
produced therein could __on record and
could not have been._permi:tted._to evidence. I.A
No.8 being committed
the error, ought mistake, which is
apparent ti\.;e'V"'i~,'«_'et;orcl,VVVsince the orders passed
on I.As No.6' 8_L7,,is'toéco'nsici'er'"them along with the main.
E__Eve_n o'tAh'e«rw.i_se, clause (a), (aa) & (b) of sub–ruie
V(".1.)'of"Rugie.__27;'urider Order 41 CPC refers to three different
_gsitua'ti.o'n~s. VTiiVé–;'Vpower of appeliate court to pass order
'th.ereunde..rV"V.,.isV4 iimited. For exercising the jurisdiction
atl4th.ereu'ln"d,er,the appeiiate court must arrive at a finding that
"i~..,_on'e [or the other conditions enumerated thereunder is
E-
, .
satisfied. A good reason must also be shown as to why the
evidence sought to be produced in the appeal
produced in the trial court.
6. The conditions precedentfor a’pp_|icati;c
(aa) of sub~ru|e (1) of Rule 27VundeAr’«.__Order 4liV’..’ie”di’fferentd’~
from that of clauses (a) & the=.in’sta’nt'””case,
indisputably clauses (a) &r(l:)x) ofp.R’uie”c_247V(‘1.)._or t§r’d’er*”¥i1 have
no application i.e., in solfllfar 7 & 8 are
considered. The permission for
production of i:t..;wo’u|d be for them to
show Rule 27(1) (aa) are
satisfied.
7.;=~ In uthe_”‘case’ of STATE OF GUJARAT VS.
“V:l\’1.AFlEVi\£’D’i§liil?§Lfi$?Ii’l_R PA’ii’sHoTTAMBHA1 DESAI, reported in
2oois”(9i)l’ been held as follows:
V1.0. the appellate court has the power to allow
a d’oVeument to be produced and a witness to be
p A’ examiified under Order 41. Rule 27 CPC, the requirement
l ‘~_lloi’–t’i1e said Court must be limited to those cases where it
found it necessary to obtain such evidence for enabling it
‘i:
to pronounce judgment. This provision did not entitle the
appellate court to let in fresh evidence at the appellate
stage where even without such evidence it can prenotiiace
judgment. in the case. it does not entitle tire
court to let in fresh evidence only for the of’
pronouncement of judgment in alpartictiiar way_:”‘– _ ‘V
8. In the case of,e’i~l4_._.i<AlVlV)3.E,_ifX';'-'i me if.
ANOTHER vs. AYYASAMY AND Alll'lO.:l*_HEi2, iepeeee (2001)
7 scc 503, it has been oreei 41 Rule
27 have not been enpgrafteid patch up the
weak points in omission in the
court of appeal any lacunae or gaps in
evidence
9. 1n.._the” KUMAR AND ANOTHER vs.
‘…i%>.APAl\il’ii:’;’l mo Oi;HERVS__,___preported in ILR 2010 Kar 3864, with
to tine -riourjse of action to be followed by the court
when:’cl.a’i:ns%fe.r in additional evidence is putforth, it
has been “ale follows:
it ” ‘*’Tl’l€ Courts shall have to be cautious and must always
it ‘..d’ac.t5With great circumspection in dealing with the claims
K for letting in additional evidence parficularly, in the form
*” t’
illegality. When the mistake was brought to its notice, more
particularly the order being contrary to the orders passeu’.;_’o.q_
Z{.As 6 & 7, the court below ought to have recalle.C§_:«.itS”libyfiifir–..___”.
as the error is apparent on the face of the recoruk”
it may.
1:. The marking of dvoc’u.n1ents..lllproposedetgow..’3be%
produced along with i.As 6 & 7 beil:n’g:_contrary««tothe? orders
passed on I.As 6 & 7, the prxayeri is meritorious.
In the said view of the matter, Ijpassg”tbe.’f_ovlg:|”(§ldii’ng:
V.
Thezgjbwrit the impugned order
stands quas”ned’.t supra, being meritorious,
stands a|!–o.wed.u”
Iticléé