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Judgment
B. Veerappa, J.—This is first defendant''s regular second appeal against the judgment and decree dated 25.06.2013 made in R.A.No.68/ 2009 on the file of the V. Additional District and Sessions Judge, Puttur, Mangalore D.K., dismissing the appeal and confirming the judgment and decree dated 13.2.2009 made in O.S.No. 110/1998 on the file of the Principal Civil Judge (Sr.Dn.) Puttur, D.K., decreeing the suit declaring the sale deed dated 25.6.1997 and subsequent document during the pendency of the suit i.e., rectification deed dated 24.3.1999 in respect of ''B'' schedule property are void and invalid documents as against the plaintiff''s firm and is not binding on them and for consequential permanent injunction.
The first respondent, who is the plaintiff before the Trial Court had filed the suit for declaration and prohibitory permanent injunction contending that the plaintiff is a registered firm running its factory in ''A'' schedule property which consists of 2 acres 66 cents of land carrying its business of rubber processing, manufacturing and allied matters for the said purpose there is a factory building with all valuable machinery with generator set, laboratory, offices, godowns, storage of rubber units, garages etc., and the said factory is carrying on its business on the basis of finance of KSFC and KSIIDC and it was established in the year 1986 during the said period defendant No. 1 was Managing Partner and his son defendant No. 2 was the partner with other ; partners and they were unable to continue the business for want of necessary working capital, as such they have transferred management to new partnership as per the deed dated 23.7.1993 comprising of 15 partners including the defendants and one Mohammed Shaft was the Managing Partner and in spite of his efforts there was no improvement in the plaintiffs business as its partners have failed to provide their share of working capital, as such after release of the rights of each partners again fresh partnership was constituted as per the deed dated 3.1.1994 and with the co-operation with all its partners now it is doing its business smoothly etc., and also contended that when the matter stood thus, defendant No. 1 started claiming some of his rights in the ''A'' schedule property and on enquiry plaintiff learns that there is a document purporting to be a sale deed dated 25.06.1997 tor sale of 14 cents of land in ''A'' schedule property by the defendant No. 2 in favour of defendant No. 1 and on the basis of such deed the defendant No. 1 has tried to interfere and cause trouble to the business affairs of the plaintiff''s firm etc. Therefore the plaintiff was constrained to file the suit as prayed for.
The defendants filed written statement and admitted that the plaintiff firm was started by them, however they have denied the failure of the business of the plaintiff firm due to the act of these defendants and further contended that ''A'' schedule property i.e., 2 acres 66 cents is fully covered with compound wall, barbed wire fence with road towards its southern side and defendants admitted about the availment of the loan by the plaintiff''s firm from KSFC and they have denied the sale of mooli right on 9.10.1997 in favour of the plaintiff firm for Rs. 1.00,000/- and also contended that by way of sale deed dated 25.6.1997 defendant No. 2 had sold the right to use the road for Rs.7,000/- to the defendant No. 1, but due to oversight in the said sale deed it is mentioned that an area of 14 cents was sold to the defendant No. 1 but to that effect they have entered into correction deed on 24.3.1999 and as per the correction deed defendant No. 1 has purchased the right of roadway on ''B'' schedule property which is part of ''A'' schedule property etc., therefore, prays for dismissal of the suit.
On the basis of the aforesaid pleadings the Trial Court framed the following issues:
" 1. Whether plaintiff proves that he has got right over 0.16 acres extent out of the plaint A schedule property?
Whether the plaintiff proves that the s? deed dated 25.6.1997 executed by the 2nd defendant in respect of the plaint B schedule property in favour of the 1st defendant is not valid document and also not binding on the plaintiff?
Whether the plaintiff proves that the defendants agreed to sell mooli right in plaint schedule property in favour of the plaintiff for Rs. 1,00,000/- on 9.10.1997?
Whether the defendants proves that deed of rectification entered into between both defendant Nos. 1 and 2 on 24.3.1999 is tenable under law?
Whether the suit is bad for non-joinder of necessary parties?
Whether the plaintiff is entitled for the relief of declaration as prayed for?
Whether the plaintiff is entitled for the relief of prohibitory injunction as against the defendant in respect of plaint B schedule property as prayed for?
What order or decree? "
In order to substantiate the plaintiff''s case the Managing Partner of the plaintiff firm was examined as PW. 1 and one witness as PW.2 and marked the documents Exs.P1 to P20. Defendant No. 1 was examined as DW. 1 and marked the documents Exs.D1 to D2.
On consideration of the entire oral and documentary evidence on record, the Trial Court recorded a finding that the plaintiff proved that he has right over 0.14 cents of land out of 2 acres 66 cents of land in ''A'' schedule property and the sale deed dated 25.06.1997 executed by the 2nd defendant in respect of ''B'' schedule property in favour of the 1st defendant is not a valid document and also not binding on the plaintiff and the plaintiff further proved that the defendants agreed to sell the mooli right for Rs. 1 ,(X),000/- as per Ex.P.4 dated 9.10.1997 and plaintiff is entitled to the relief of declaration and also injunction in respect of ''B'' schedule property. Accordingly the suit came to be decreed.
Aggrieved by the said judgment and decree the appellant filed R.A.No.68/2009 before the V Additional District and Sessions Judge, D.K. Mangalore, who after hearing both the parties by the impugned judgment and decree dismissed the appeal confirming the judgment and decree of the Tidal Court.
The concurrent findings of facts recorded by the Courts below did not deter the appellant from preferring this regular second appeal as a last ditch attempt.
I have heard the learned counsel for the parties to lis.
Sri K. Ravi Shankar, learned counsel for the appellant vehemently contended that both the Courts below without considering both oral and documentary evidence on record proceeded to pass the impugned judgment and decree contrary to law and also contended that during the pendency of the appeal the appellant filed an application under Order 41, Rule 27 of the Code of Civil Procedure for production of additional documents, though the respondents filed objections to the said application, the Lower Appellate Court has not at all considered the said application and passed the impugned judgment and decree. In the absence of consideration of the said application the Lower Appellate Court cannot proceed further. Therefore, he sought to set aside the judgment and decree of the Appellate Court.
Per contra, Smt. Neeraja Karanth, learned counsel for Sri K. Shrihari, learned counsel for caveator -respondent No. 1 sought to justify the impugned judgment and decree of the Courts below. But she was unable to dispute the fact that the Lower Appellate Court has not considered I.A.No.4 filed under Order 41, Rule 27 of the Code of Civil Procedure before the disposal of the main appeal on merits.
While admitting the present appeal this Court has framed the following substantial question of law
Whether the Lower Appellate Court is justified in deciding the appeal on merits without deciding I.A.No.4 filed under Order 41, Rule 27 of the Code of Civil Procedure filed by the appellant ?
I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
It is not in dispute that the plaintiff filed a suit for declaration and prohibitory permanent injunction in respect of the suit schedule property raising several contentions, the same was disputed by the defendants by filing written statement and ultimately the Trial Court decreed the suit by the impugned judgment and decree dated 13.02.2009. It is also not in dispute that while filing the appeal before the Lower Appellate Court the appellant also filed I.A.4 for production of additional documents. The material documents on record clearly discloses that in the Lower Appellate Court the appellant has filed the application on 24.03.2010 under Order 41, Rule 27 r/w section 151 of the Code of Civil Procedure in support of his case. Admittedly the Lower Appellate Court has not considered the said application and proceeded to dispose of the appeal itself on merits.
The said fact of non-consideration of I.A.4 filed under Order 41, Rule 27 r/w section 151 of the Code of Civil Procedure before the Lower Appellate Court has not been disputed by the learned counsel for the respondents fairly, therefore, it clearly depicts that the Lower Appellate Court has not decided the application I.A.4, hence the judgment and decree of the Lower Appellate Court is vitiated on account of non-consideration of I.A.4. It is well settled law that application filed under Order 41, Rule 27 of the Code of Civil Procedure is to be considered at the time of hearing the appeal on merits, so as to find out whether the documents or evidence sought to be adduced have any relevancy/bearing on the issues involved. The admissibility of the additional evidence does not depend upon the relevancy to the issue on hand or on the fact, whether the applicant had an opportunity for adducing such evidence at the earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce the judgment on the materials before it without taking additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacunae or defect becomes apparent to the Court.
In the present case, admittedly without considering the application I.A.4 filed under Order 41, Rule 27 r/wr section 151 of the Code of Civil Procedure the Appellate Court proceeded to pass the judgment on the merits of the case. It is the duty of the Lower Appellate Court to consider the application under Order 41, Rule 27 of the Code of Civil Procedure, it should be considered at the first instance, at the time of disposal of the appeal on the merits of the case. In the present case, the Lower Appellate Court has not at all considered the said application before deciding the appeal on merits or at the time of disposing of the appeal on merits and the same is contrary to the dictum of the Hon''ble Supreme Court in the case of Jatinder Singh & Anr. v. Mehar Singh & Ors. with Balbir Sing & Anr. v. Jatinder Singh and Anr. reported in AIR 2009 SC 354, the Hon''ble Supreme Court held at paragraphs 4 and 5 as under
"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41, Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to he admitted into evidence. In our view when an application for acceptance of additional evidence under Order 41, Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.
For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs. "
In view of the aforesaid reasons, the substantial question of law has to be answered in the ''negative'' holding that the Appellate Court is not justified in allowing the appeal on merits without considering the application I.A 4 filed by the appellant under Order 41, Rule 27 r/w section 151 of the Code of Civil Procedure. In view of the same the impugned judgment and decree passed by the Lower Appellate Court is vitiated and cannot be sustained.
In the result, the appeal is allowed in part. The judgment and decree dated 25.06.2013 made in R.A.No.68/2009 on the file of the V Additional District and Sessions Judge, D.K. Mangalore, is set aside and the matter is remanded to the Lower Appellate Court for reconsideration of the application I.A.1 filed under Order 41, Rule 27 r/w section 151 of the Code of Civil Procedure and to proceed with the matter in accordance with law. Since the suit for declaration was filed on 25.09.1998, it is appropriate to direct the parties to appear before the Lower Appellate Court on 20.07.2016 and Lower Appellate Court is directed to decide the appeal after giving sufficient opportunity to both the parties and to pass the judgment and decree as expeditiously as possible in accordance with law.