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2010 DIGILAW 390 (KAR)

G. Halingappa v. Yajaman Bandikar Chikkanna

2010-03-26

V.JAGANNATHAN

body2010
JUDGMENT : The appellants herein are defendants 3 to 7 in the suit filed by the respondents-plaintiffs and following the suit of the plaintiffs for declaration and injunction sought against appellants and other defendants being dismissed by the Trial Court, Plaintiffs preferred Regular Appeal in R.A. No. 74 of 2006 before lower Appellate Court and the plaintiffs also produced certain documents by way of I.A. Nos. 5, 6 and 9. The lower Appellate Court allowed the said applications and also application filed by the plaintiffs seeking amendment of the plaint and remanded the matter to the Trial Court for disposal afresh. It is this order that is called in question by the aforesaid defendants. 2. The learned Senior Counsel Sri Devdas for the appellants submitted that the order of the Court below suffers from two infirmities, one is that before allowing the application filed under Order 41, Rule 27 of the Civil Procedure Code, 1908, seeking production of additional evidence by producing certain documents, Court below ought to have considered whether any of the circumstances mentioned in Order 41, Rule 27 of the CPC were met by the respondents-plaintiffs and it did not record a finding as to the existence of any one of three situations namely, (a) whether the Trial Court has illegally refused the evidence although it ought to have been permitted; or (b) whether the evidence sought to be adduced was not available despite the due diligence exercised by the plaintiffs and (c) whether the additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment. Therefore, submission made is that in the absence of clear finding being recorded as to one of the conditions being satisfied, the lower Appellate Court could not have mechanically allowed the application filed for production of additional documents. The second infirmity pointed out is that even if the Appellate Court wanted to allow the applications after giving the appellants opportunity to meet the documents produced by the plaintiffs, the Appellate Court itself could have disposed of the matter instead of remanding the case and in this connection, reliance is placed on a ruling of this Court in the case of Gabriel Bhaskarappa Kuri and Others versus United Basel Mission Church in India Trust Association, Gadag and Others [2007(3) Kar. L.J. 205 : ILR 2007 Kar. 773]. 3. L.J. 205 : ILR 2007 Kar. 773]. 3. On the other hand, learned Counsel Sri V. Siddaramaiah for the respondents-plaintiffs submitted that the Appellate Court order does not require any interference as the matter has been remanded to the Trial Court for evidence in respect of additional documents produced and also in respect of documents called for from third parties. 4. In the light of the aforesaid submissions made by the learned Counsel for the parties and this Court in the decision in the case of Gabriel Bhaskarappa Kuri, referred to by the appellants’ Counsel, having held that remand to Trial Court is deprecated and the Appellate Court itself if thinks that additional evidence will have to be considered by it, can consider the same after affording both sides opportunity to place the said additional evidence and thereafterwards endeavour to dispose of the case instead of remanding it to the Trial Court; the Appellate Court should not have remanded the matter to the Trial Court. The decision clearly mentions that the Appellate Court should not set aside the judgment and decree of the Trial Court and remand the case merely because it decides to admit the additional evidence and therefore, having regard to the aforesaid observations made in para 9 of the decision referred to by the appellants’ Counsel and the Trial Court also having already considered the evidence let in by both the parties, it is for the Appellate Court to consider the additional evidence that the plaintiffs want to place and the Appellate Court can itself dispose of the case on merits without remanding the case to Trial Court. For the above reasons without going further deep into the merits of the case, the impugned judgment of the lower Appellate Court is set aside and the matter is remanded to lower Appellate Court for disposal after affording both sides opportunity particularly in respect of additional documents sought to be produced by the plaintiffs and the Court below also shall take into account the circumstances under which the additional documents can be permitted to be placed in evidence. Since the matter is being remitted to the lower Appellate Court and also the nature of suit filed being in respect of management affairs of the temple, the Appellate Court shall endeavour to dispose of the case within six months from the date of this order’s receipt. Since the matter is being remitted to the lower Appellate Court and also the nature of suit filed being in respect of management affairs of the temple, the Appellate Court shall endeavour to dispose of the case within six months from the date of this order’s receipt. Both the parties shall co-operate in this regard.