VASUDEVA RAO Vs. C. SRINIVAS RAO

JUDGEMENT

(1.) This writ petition has been filed by defendant 1-Vasudeva Rao S/o late C. Achuthayya challenging the order dated 2-12-2016 passed by the learned First Appellate Court of VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, in R.A. No. 13 of 2010 (Vasudeva Rao Vs. C. Snnivas Rao and Others) by which the learned Court below rejected the application of the petitioner under Order 41, Rule 27 and section 151 of Civil Procedure Code, 1908 seeking to bring on record additional evidence in the form of a Will registered on 7-10-2002 executed by his mother-Smt, Savithramma in his favour and the fact that his mother Smt. Savithramma expired on 22-8-2009.

(2.) During the pendency of the trial, at the fag end, before the suit was decreed on 15-9-2009, he had filed a memo dated 27-8-2009 informing the death of his mother on 22-8-2009 leaving behind a Will in favour of the petitioner/plaintiff-Vasudeva Rao but since the suit for partition itself was decreed on 15-9-2009, 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 of 2010 filed in 2010 before the First Appellate Court under section 96 of the CPC.

(3.) In the year 2016, the present petitioner filed an application under Order 41, Rule 27 and section 151 of Civil Procedure Code 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: