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2018 DIGILAW 891 (KAR)

Vasudeva Rao v. C. Srinivas Rao

2018-08-13

VINEET KOTHARI

body2018
ORDER : 1. This writ petition has been filed by Defendant No. 1-Vasudeva Rao S/o Late C. Achuthayya challenging the order dated 02.12.2016 passed by the learned first Appellate Court of VI Additional District & Sessions Judge, D.K. Mangaluru, in R.A. No. 13/2010, Vasudeva Rao vs. C. Srinivas Rao and Others by which the learned Court below rejected the application of the petitioner under Order 41 Rule 27 and Section 151 of CPC seeking to bring on record additional evidence in the form of a Will registered on 07.10.2002 executed by his mother-Smt. Savithramma in his favour and the fact that his mother Smt. Savithramma expired on 22.08.2009. 2. During the pendency of the trial, at the fag end, before the suit was decreed on 15.09.2009, he had filed a memo dated 27.08.2009 informing the death of his mother on 22.08.2009 leaving behind a Will in favour of the petitioner/plaintiff-Vasudeva Rao but since the suit for partition itself was decreed on 15.09.2009, the petitioner/plaintiff claims that he could not file proper application before the learned Trial Court at that stage and had to file an Appeal R.A. No. 13/2010 filed in 2010 before the first Appellate Court u/s. 96 of the CPC. 3. In the year 2016, the present petitioner filed an application under Order 41 Rule 27 and Section 151 of CPC seeking to adduce additional evidence i.e. Will in his favour, but the said application came to be rejected with the following reasons assigned by the first Appellate Court: "REASONS 7. Point No. 1: I have gone through the application, objection to the application, scrutinize the arguments and the decision cited by the counsel for the respondent No. 1. In the application appellant contended he has filed this appeal only so far as grant of 1/6th share to the 1st respondent/plaintiff in item No. 9 and 10 of the plaint 'A' schedule property, which belongs to his mother on the ground that when she was of sound and disposing state of mind she had executed a registered will dated 7-10-2002 bequeathing the said property in his favour. His counsel through memo reported the death of his mother on 27-8-2009 stating she died on 22-8-2009, further informed his mother executed a will in his favour. Trial Court observes in it judgment will was not produced or proved. His counsel through memo reported the death of his mother on 27-8-2009 stating she died on 22-8-2009, further informed his mother executed a will in his favour. Trial Court observes in it judgment will was not produced or proved. Trial Court not granted opportunity to file additional written statement or to produce the will after the amendment of the plaint, hence the application to produce the will. In the objection respondent No. 1 denied the contention of the appellant. Further contended after a span of 11 years additional evidence and production of the will at this stage is not permissible, further taken other contention in the objection and has prayed to dismiss the application. Perused the order sheet of the trial Court in O.S. No. 172/2005. Order sheet shows on 27-8-2009 counsel through memo reported the death of defendant No. 2 and LRs already on record and then the case adjourned on 31-8-2009. On 31-8-2009 plaintiff filed I.A. 31 and 32 with documents, counsel for appellant submits no objection to mark, with consent the document marked. Here in the application appellant contended trial court was not granted opportunity to him to file addl. written statement or produce the will. If he wants to produce the documents before the trial court through application produce the document. Even not filed the application before the trial Court now contended trial Court has not granted an opportunity to produce the documents. If in case he would filed the application before the trial Court to produce the documents, if the trial court was not considered the application filed by him definitely the contention of the appellant is accepted, but he has not made the same. This appeal filed in the year 2010 but this application filed on 15-9-2016. Here this shows nearly six years after this appeal filed this application stating his mother executed a will on 7-10-2002. The will shows during the pendency of the suit in O.S. No. 172/05 (O.S. No. 147/95) the deceased Savithramma, the defendant No. 2 executed a will. After perusal of the application filed by the appellant this Court come to the conclusion appellant not stated the reason in delay in filing the application. If at this stage consider the application definitely the matters go back to the stage of evidence, further the litigation shown nearly twenty years. After perusal of the application filed by the appellant this Court come to the conclusion appellant not stated the reason in delay in filing the application. If at this stage consider the application definitely the matters go back to the stage of evidence, further the litigation shown nearly twenty years. So far the above discussion this Court come to the conclusion appellant not made out a sufficient ground to consider the application. So my view is necessary to be rejected the application filed by the appellant and I answered this point in negative and I proceed to pass the following: ORDER 1. I.A. under Order 41 Rule 27 and Sec. 151 of CPC filed by the appellant is hereby rejected. 2. No order as to cost." 4. Learned counsel for the petitioner/plaintiff Mr. Chandranath Ariga relying upon para-36 of the Hon'ble Supreme Court in the case of Union of India vs. K.V. Lakshman, (2016) 13 SCC 124 has submitted that under Order 41 Rule 27 of the CPC is an enabling provision to allow the appellant to file additional evidence to be brought on record and if the Appellate Court is satisfied that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are subject matter of the lis, the Court should allow the party to file such additional evidence. Para-36 of the said judgment is quoted below for ready reference: "36. Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second Appellate stage. If the party to appeal is able to satisfy the Appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject-matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in its favour and accepted such evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in its favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the Appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal." 5. On the other hand, the learned counsel for the respondent/plaintiff No. 1 opposed the submission of the petitioner/defendant. 6. Having heard the learned counsel for the parties, this Court is satisfied that no interference is called for in the impugned order of the first Appellate Court and the learned Court below was absolutely justified in rejecting the said application filed under Order 41 Rule 27 and Section 151 of CPC filed at a belated stage. The conduct of the petitioner/ defendant in the present case is negligent to say the least. In a suit for partition, if he had come up with a defence in the form of a registered Will executed by his mother in his favour way back in 07.10.2002, firstly nothing prevented him to file the said documentary evidence immediately after its execution during trial or at least after the death of his mother. Even assuming for the argument sake that the said Will came into his possession after the death of his mother, even at that stage the said document could have been produced before the trial Court particularly when a Memo stipulated therein about the existence of the said Will which was filed by the petitioner before the Trial Court on 27.08.2009. However, the petitioner allowed the suit to be decreed for partitioning the joint family property including the property for which he claimed that the Will in his favour in the appeal filed soon thereafter in the year 2010. For good six years the petitioner waited and when the Appellate proceedings were nearing conclusion in 2016, the present petitioner sought to move the present application which for obvious reasons, was rejected. 7. The litigant of this nature cannot be allowed to be put back the clock of trial on the square one again and again. For good six years the petitioner waited and when the Appellate proceedings were nearing conclusion in 2016, the present petitioner sought to move the present application which for obvious reasons, was rejected. 7. The litigant of this nature cannot be allowed to be put back the clock of trial on the square one again and again. The due diligence besides relevance of the document, is extremely necessary to determine such applications for allowing the party to lead additional evidence at a later stage. The enabling provisions, which empower the Court to allow it at a later stage requires the party concerned to first establish that he was prevented by sufficient cause not to adduce such relevant evidence earlier than the point of time when it is so produced. The delay in the present case has been gross, to say the least and the effort of the petitioner herein only appears to delay the decision of the appeal somehow or the other. 8. This Court therefore fully endorses the view taken by the first Appellate Court in the present case and is only surprised how such application was not dismissed with exemplary costs by the learned first Appellate Court below. 9. With the above observations, the writ petition is accordingly dismissed.