G HALINAGAPPA Vs. YAJAMAN BANDIKAR CHIKKANNA

JUDGEMENT

(1.) 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 LA. 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 Ors. v. United Basel Mission Church in India Trust Association, Gadag and Ors., 2007 3 KarLJ 205

(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.