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2016 DIGILAW 482 (KAR)

BHIMAVVA v. KRISHNABAI

2016-06-28

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : This appeal is by the plaintiffs in O.S. No. 36/1999 on the file of Civil Judge (Sr. Dn.), Hukkeri. The suit was instituted to pass a decree of declaration and for passing decree(s) of permanent and mandatory injunctions. Written statement was filed by defendant no.1 and the same was adopted by the other defendants. Ten issues were raised. The parties adduced evidence. The Trial Court decreed the suit in part, entitling the plaintiff nos.1 and 2, to 1/6th share each, in the suit schedule properties. The prayer at column nos. (a), (c) and (d) of the plaint was dismissed. 2. Feeling aggrieved, the plaintiffs filed R.A. No. 67/2008 on the file of District Court at Belgaum. I.A. No. V was filed, under Order XLI Rule 27 r/w Sec. 151 of CPC, to accord permission to produce additional documents and additional evidence. The lower appellate Court having dismissed the appeal, this second appeal was filed. 3. Perused the record. The substantial question of law for consideration is, whether the failure on the part of the lower Appellate Court to take notice of I.A.V filed under Order XLI Rule 27 CPC, has vitiated the Judgment and Decree passed by it? 4. With the consent of learned advocates on both sides, the appeal is taken up for final hearing. 5. Heard the learned advocates. It is unnecessary to record the rival contentions, since the appeal can be decided on a short ground. 6. Indisputably, I.A. V, under Order XLI Rule 27 CPC, was filed on 14.06.2011 for acceptance of additional documentary evidence. Statement of objections to the said I.A was filed on 05.07.2011. While deciding the appeal, lower Appellate Court has failed to take notice of I.A.V and decide, whether additional documents could be permitted in evidence. I.A.V having been filed by the appellants, it was the duty of the Appellate Court to deal with the same in accordance with law. The Court below has failed to discharge its duty. 7. IN HAKAM SINGH Vs. STATE OF HARYANA, (2008) 12 SCC 762 , an appeal was filed for enhancement of compensation. Application filed under Order XLI Rule 27 CPC for acceptance of additional evidence in the appeal, while disposing the appeal, was not considered. When the said fact was brought to the notice of the Apex Court, it was held as follows: “4. STATE OF HARYANA, (2008) 12 SCC 762 , an appeal was filed for enhancement of compensation. Application filed under Order XLI Rule 27 CPC for acceptance of additional evidence in the appeal, while disposing the appeal, was not considered. When the said fact was brought to the notice of the Apex Court, it was held as follows: “4. Without going into the facts in detail, these appeals can be disposed of on a very short point. It is an admitted position that an application under Order 41 Rule 27 of the Code of Civil Procedure (in short “the Code”) for acceptance of additional evidence was filed before the High Court in the aforesaid first appeals which were dismissed by the High Court by the impugned order. However, the application for acceptance of additional evidence under Order 41 Rule 27 of the Code was not considered by the High Court while disposing of the appeal. 5. That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the cases to the High Court for decision of the appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the Code.” 8. In JATINDER SINGH AND ANOTHER Vs. MEHAR SINGH AND OTHERS, (2009) 17 SCC 465 , Appellate Court having failed to take notice of an application filed by the appellant therein, under Order XLI Rule 27 CPC, while deciding the second appeal, Apex Court has held, that when such an application was pending, it was the duty of the High Court to deal with the same on merits and not having done so, there is no other alternative but to set aside the Judgment of the High Court and to remit the appeal for a fresh decision in the second appeal after taking into consideration the application filed under Order XLI Rule 27 CPC. 9. In view of the undisputed factual position i.e., non consideration of I.A. V by the lower Appellate Court and the settled position of law, noticed supra, the substantial question of law is answered in favour of the appellants. In the result, the appeal is allowed and the Judgment and Decree passed by the II addl. Dist. 9. In view of the undisputed factual position i.e., non consideration of I.A. V by the lower Appellate Court and the settled position of law, noticed supra, the substantial question of law is answered in favour of the appellants. In the result, the appeal is allowed and the Judgment and Decree passed by the II addl. Dist. and Sessions Judge at Belgaum, impugned in this appeal, is set aside. R.A. No. 67/2008 is restored to its file for consideration afresh along with I.A.V filed therein. While deciding the appeal and I.A.V, lower Appellate Court shall keep in view the ratio of law laid down by the Apex Court in the case of UNION OF INDIA Vs. IBRAHIM UDDIN, (2012) 8 SCC 148 , in the matter of receiving or otherwise of the additional evidence, at the appellate stage. It is made clear that this Court has not gone into merits as to whether I.A.V should be allowed or not. It is for the lower Appellate Court to consider the said I.A. by keeping in view the said decision of the Apex Court. Registry is directed to return the LCR forthwith to the concerned Court. The parties are directed to appear before the II Addl. Dist. and Sessions Judge, Belgaum, on 16.07.2016 and receive further orders. The litigation between the parties having commenced during the year 1999, the Court below is directed to decide the case with expedition and on or before 30.11.2016.