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2013 DIGILAW 173 (KAR)

Ningappa v. Shivappa

2013-02-12

A.N.VENUGOPALA GOWDA

body2013
JUDGMENT : A.N. Venugopal Gowda, J. 1. This second appeal is against a judgment and decree dated 29.09.2007 passed in R.A. No. 126/2002 by the II Additional Civil Judge (Sr. Dn.), Dharwad, by which a judgment and decree dated 07.06.2002 passed in O.S. No. 319/2001 by the Principal Civil Judge (Jr. Dn.) and J.M.F.C., Dharwad, was confirmed. The suit was filed in the Trial Court by the appellant against the respondents to pass a decree of permanent injunction in respect of the plaint schedule property. After trial, the suit was dismissed and the same was questioned by filing a first appeal. 2. It is unnecessary to go into the factual details, since, this appeal can be decided on a very short ground. This appeal was admitted to consider the following substantial question of law:-- "Whether the 1st Appellate Court was justified in deciding the appeal without considering the application filed by the appellant under Order 41 Rule 27 of CPC to receive the additional evidence?" 3. In disputedly, the appellant filed an application on 20.03.2007 under Order 41 Rule 27of CPC in the First Appellate Court to receive additional evidence. On 22.03.2007, respondents filed objections to the said application and the case was adjourned to 03.04.2007, to hear the main appeal and also the said application. The appeal was dismissed by a judgment dated 29.09.2007. However, the application filed on 20.03.2007 under Order 41 Rule 27 of CPC was not considered by the First Appellate Court, while deciding the appeal. 4. In the case of Jatinder Singh and Another v. Mehar Singh and Others, (2009) 17 SCC 465 , in identical circumstances, Apex Court has held as follows: "4. 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 Rule27 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. In our view, when an application for acceptance of additional evidence under Order 41 Rule27 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." 5. An application filed under Order 41 Rule 27 of CPC has to be considered at the time of hearing of the appeal on merits, so as to find out, as to whether the documents and the evidence sought to be adduced, has any bearing on the issues involved. Since the application filed by the appellant has not been considered and any order passed and the appeal has been dismissed by the First Appellate Court, the judgment and decree passed by it being vitiated, on account of misdirection adopted, the same is liable to be set aside. In the result, the judgment and decree dated 29.09.2003 passed in R.A. No. 126/2007 by II Additional Civil Judge (Sr. Dn.), Dharwad, is set aside. The First Appellate Court is directed to decide the said application and the appeal, keeping in view the provision under Order 41 Rule 27 of CPC and the interpretation placed on it by the Apex Court in the case of Union of India v. Ibrahim Uddin and Another, (2012) 8 SCC 148 . The First Appellate Court is directed to decide the appeal expeditiously and before 31.08.2013. Both the parties are directed to appear before the Lower Appellate Court on 16.03.2013 and receive further orders. In the circumstances of the case, there shall be no order as to costs.