S M BASAVARAJAPPA Vs. S N MANJUNATHA

JUDGEMENT

(1.) THIS civil revision petition is filed under Section 115 of the Code of Civil Procedure, arises from the judgment and order dated 8-2-1994 passed by civil judge, arasikere on an application la. I under order 41, Rule 27 of the Code of Civil Procedure, moved in r. A. No. 20 of 1992, rejecting that application after having opined that the appellant has failed to show or to make out a case to permit him to adduce additional evidence under order 41, Rule 27 of the CPC. It is further observed that the approach of the appellant seeking the relief for production of additional evidence is not fair and honest. The lower appellate court has further observed in its order that the plaintiffs application is not of an ordinary prudent man, but he is a school teacher. If he is required to sell property under some deed, he would not have forgotten to mention the said fact that he would not have forgotten to produce the said document in support of his case ao as to establish his own title. It appears that appellant has slept over his rights for the reasons best known to him and when his attempt to get the decree from the trial court has gone in vain, he has come up with the said application before that court and filed la. I. Of course, negligence that is committed by the plaintiff in non-production of the document rather cannot be cured at this stage. With these observations, the appellate court rejected the appellant's application under order 41, Rule 27 of the CPC. Thus, feeling aggrieved from this order the plaintiff-appellant has come up before this court by filing the present civil revision petition under Section 115 of the CPC.

(2.) I have heard Sri G. Lingappa, learned counsel appearing on behalf of the petitioner and Sri Rudragowda, the learned counsel appearing on behalf of the respondents.

(3.) A preliminary objection has been raised about the maintainability of the revision petition as well on behalf of the respondents. Learned counsel for the revision petitioner contended that the impugned order suffers from illegality and it has affected the right of the appellant to produce the evidence. Learned counsel for the petitioner made reference in this connection to the famous decision of their lordships of Supreme Court in the case of Major S. S. khanna v Brig. F. J. Dillon, and on that basis submitted that the order impugned may be held to be case decided. The learned counsel for the petitioner further submitted that with respect to the merits of the application, that aa per the affidavit the documents were not within the applicant's knowledge, in spite of the exercise of due diligence. The learned counsel for the petitioner further contended that the allegations made in the affidavit have not been considered by the lower appellate court while rejecting the application. The learned counsel further contended that in the affidavit it was stated that the plaintiff-appellant is owner of suit property and to substantiate his title to suit property he wants to produce some documents, he has acquired the property from his own income while he was in service. But that document which he haa traced was not within his knowledge in spite of due diligence and I could not produce before the trial court at the time of adducing the evidence. The learned counsel for the petitioner further contended that the court below has acted illegally in rejecting the application on unwarranted grounds. The petitioner's counsel's contention which was on merits was also controverted by the learned counsel for the respondents.