Mallappa vs Sripati and Others

Aravind Kumar, J.—Heard Sri F.V. Patil, learned counsel appearing for the petitioner and Sri S.N. Banakar, learned counsel appearing for the caveator/respondent.

Application filed by the respondent herein in R.A. No. 2/2012 seeking production of additional evidence by invoking Order XLI Rule 27 (1) (aa) r/w Section 151 of CPC came to be allowed by permitting respondent to get himself examined for the limited purpose of proving his relationship with deceased 1st defendant and said order has been called in question in this writ petition.

It is the contention of Mr. F.V. Patil, learned counsel appearing for the petitioner (defendant No. 2 in O.S. No. 89/1994 and O.S. No. 2/1993) that trial Court having found that none of the ingredients of Order XLI Rule 27 (1) (aa) is attracted to the facts and circumstances of the case, ought not to have allowed the application and that too by permitting the respondent herein namely 1st plaintiff in O.S. No. 2/1993 to tender further evidence whereby she has sought for filling up of lacunas or gaps in the evidence of PW-1 who undisputedly was the power of attorney holder of 1st plaintiff before the trial Court. Hence, he prays for setting aside the impugned order and for allowing the writ petition.

Per contra, Sri S.N. Banakar, learned counsel appearing for respondent/caveator (1st respondent) would support the impugned order and contends that in order to do substantial justice between parties, lower appellate court has allowed the application filed by appellant (1st plaintiff before the trial Court) and has permitted to lead evidence with regard to proving the issue of relationship between 1st plaintiff and deceased 1st defendant and as such, there is no illegality or infirmity committed by the lower appellate court calling for interference. Hence, he prays for dismissal of the writ petition.

While considering an application for additional evidence, the litmus test which requires to be applied by the appellate court is to find out as to "whether it is able to pronounce judgment on the material available before it without taking into consideration the additional evidence?". The legitimate occasion for the application, of Order XLI Rule 27 is when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made outside the Court, of fresh evidence and the application is made to import such evidence. Keeping this in mind, when the facts on hand are examined, it would indicate that plaintiff has filed two suits for partition and separate possession i.e., O.S. No. 89/1994 and O.S. No. 2/2012 contending inter alia that 1st plaintiff is born out of the wedlock between 2nd plaintiff and 1st defendant. Said suit on contest came to be dismissed and one of the issues which came up for consideration before the trial Court in said suit was:

"Whether the defendants prove that issue Nos. 1, 3 and 4 is hit by principles of res-judicata as these issues were already answered in O.S. No. 51/1993 of Civil Judge (Sr. Dn.)., Ranebennur?".

It is not in dispute that 2nd defendant in the suit in question i.e., O.S. No. 2/1993 and O.S. No. 89/94 had filed a suit in O.S. No. 51/1993 for the relief of declaration of his ownership, rights over the property bearing No. 135/4+5 measuring 3 acres 15 guntas which is schedule TV property in the present suit in question (O.S. No. 89/1994). Said suit after contest came to be dismissed. Being aggrieved by the same, 1st plaintiff herein namely Sri Sripathi filed an appeal in R.A. No. 32/2001 (old R.A. No. 29/2000) and was unsuccessful namely appeal came to be dismissed by judgment and decree dated 15.12.2003 and same was further pursued by him before this Court in R.S.A. No. 309/2004 which also ended in dismissal by judgment and decree dated 01.02.2006. In the said appeal, a finding has been recorded to the following effect:

"15. Admittedly, the 1st defendant xxx xxx by producing the documents. The 3rd defendant has supported the case of the plaintiff. It is the specific case of the appellant 1st defendant and 3rd defendants. When the mother of the appellant herein has not supported his case and she has supported the case of the plaintiff contending that there is no relationship whatsoever nature between her and the appellant herein, it is difficult for any court to hold that the 1st defendant and the 4th defendant (appellant) herein are coparceners of the joint family and that the appellant is having right over the same. The 2nd defendant has also supported the case of the plaintiff. Both the courts have drawn adverse inference against the appellant herein since he did not step into witness box. The evidence of power of attorney holder of the 4th defendant-appellant herein is of no assistance to the case on hand. Whether there exists relationship between 1st defendant and 3rd defendant and 4th defendant-appellant herein has been born to the 1st and 3rd defendant has not been established before the trial Court. Therefore, I do not see any reasons to interfere with the concurrent findings of the courts below. Whether the appellant is the son of the 3rd defendant is a question of fact. Whether the 4th defendant is having a share in the suit property has to be decided by any court provided the relationship between the 1st defendant and 4th defendant is established on proof. Since the same has not been established, this court is of the opinion that both the courts were justified in granting a decree in favour of the plaintiff as long as the sale deed executed by the 1st defendant in favour of the plaintiff is not cancelled."

This would clearly indicate that in the said suit i.e., O.S. No. 51/1993, a finding had been recorded by the Court below that plaintiff herein had failed to establish that he was the son born out of the wedlock between 2nd plaintiff and 1st defendant herein. Even otherwise, this Court in R.S.A. No. 309/2004 had left open the issue for being proved by 1st plaintiff. In other words, judgment passed by the Court would indicates that 1st plaintiff was very well aware of the fact that burden was on him to prove the issue of he having been born out of the wedlock between 2nd plaintiff and 1st defendant. Yet he did not chose to enter the witness box. On the other hand, he executed a power of attorney in favour of one Sri Karilingappa Halemani who came to be examined as PW-1. In the cross-examination, several admissions is said to have been elicited by defendants. Trial Court as such has recorded a finding that 1st plaintiff has failed to prove the relationship.

It is not the case of 1st plaintiff that he had not executed power of attorney in favour of PW-1 nor it is his case that power of attorney had colluded with the defendants. In that view of the matter, burden was cast heavily on the 1st plaintiff to prove that necessary ingredients found in clause (aa) of sub Rule 1 of Rule 27 of the CPC are attracted to the facts and circumstances of the present case namely said evidence was required to be placed on record and without which lower appellate Court would not be in a position to pass judgment. The lower appellate Court by impugned order has categorically held that none of these ingredients are attracted to the facts and circumstances of the present case. Even otherwise in order to examine as to "whether for any other substantial cause" as envisaged under clause (b) of Order XLI Rule 27 of the CPC the impugned order is required to be set aside, this Court has examined the claim of the 1st plaintiff. It is not the case of 1st plaintiff that his power of attorney has colluded with the defendants nor the power of attorney had tendered any evidence in excess of his authority vested under the power of attorney under Ex. P.1. 1st plaintiff cannot be permitted to lead further evidence without satisfying the ingredients of Order XLI Rule 27 (1). Plaintiff cannot be permitted to fill up the gaps. That is not the purpose sought to be achieved under Order XLI Rule 27 of the CPC. In that view of the matter, I do not find that trial Court was justified in arriving at a conclusion that present 1st plaintiff''s evidence would be necessary to decide the issue in question, particularly when in earlier round of litigation, a finding has already been recorded on this issue. In that view of the matter, impugned order cannot be sustained. Hence, the following:

"i) Writ petition is hereby allowed,

ii) Order dated 26.08.2014 passed in R.A. No. 2/2012 by Senior Civil Judge, Itinerate Court, Annexure-E is hereby set aside,

iii) IA-II filed under Order XLI Rule 27 (aa) of the CPC Annexure-C is hereby dismissed.

iv) No costs."