Karnataka Neeravari Nigam Ltd. vs Arjun and Others

B.V. Nagarathna, J.—1. Though the appeal is listed for orders, with the consent of learned counsel on both sides, it is heard finally.

This second appeal is filed by Karnataka Neeravari Nigam Limited (hereinafter, referred to as "the Neeravari Nigam") and the Assistant Executive Engineer, Lift Irrigation, Sub-Division No. 2, Naviluteerth (Dam Site), Saundatti Taluk, Belgaum Dist, who was defendant No. 1 in O.S. No. 87/2007.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

The first respondent - Arjun, filed O.S. No. 87/2007, seeking a declaration that he is the legal heir of deceased Nagawwa and consequently, to pay her terminal benefits to him. It is the case of the plaintiff that he is a permanent resident of Munavalli village. That he had married to Nagawwa, daughter of Adiveppa Kambali in the year 1979 at Goravanakolla village of Saundatti Taluk. That they lived together at Goravanakolla village for some time, then they went to Odassa village in Supa Taluk. That in the year 1981, Nagawwa was appointed as a daily wage employee in the State Public Works Department. She died in harness on 28/07/2002, leaving behind the plaintiff as her legal heir. Defendant Nos. 3 to 7 have no right to claim to be the legal heir of deceased Nagawwa. But defendant No. 6 has furnished a false "vardi" before defendant No. 1, seeking her service benefits. This fact came to the knowledge of the plaintiff and he filed his objection before defendant No. 1. Defendant No. 1 advised plaintiff to get a survivorship certificate from a competent Court of law. Therefore, plaintiff filed the suit seeking a declaration that he is the only legal heir of deceased Nagawwa, his wife and consequently, to disburse all her service benefits to him.

On receipt of suit summons and Court notices, the defendants appeared through their counsel. Defendant No. 1 filed his written statement contending that the plaintiff had earlier filed O.S. No. 1/2003, seeking a declaration that he is the legal heir of deceased Nagawwa but he was unsuccessful in that suit. Plaintiff did not file any appeal against the order passed in O.S. No. 1/2003. Therefore, the present suit is barred under the doctrine of res judicata. It is contended that there was no marriage between them. Hence, plaintiff is not an heir of deceased Nagawwa, only her mother is an heir and that she is entitled to the monetary benefits. Defendant No. 4 filed his written statement denying marriage between Nagawwa and the plaintiff, but admitted that Nagawwa was appointed as a daily wager and she died on 28/07/2002. It was contended that the plaintiff was not entitled to her service benefits. He therefore, prayed for dismissal of the suit.

Defendant No. 6 appeared through his counsel and filed written statement admitting the contents of Paragraphs 1, 2 and 4 of the plaint, stating that the plaintiff was married to Nagawwa in the year 1979. That Nagawwa was working as daily wager in the Neeravari Nigam. That plaintiff is the legal heir of deceased Nagawwa. Further, claim of defendant Nos. 5 to 8 and defendant No. 3 are just and proper, as they are legal heirs of deceased Nagawwa. The written statement of defendant No. 6 was adopted by defendant Nos. 5, 7 and 8.

On the basis of the aforesaid pleadings, the trial Court framed the following issues for its consideration:--

"1. Whether the plaintiff proves that he is the husband and sole legal heir of deceased Smt. Nagawwa?

Whether the plaintiff proves that he is entitled to receive the service benefits of late Smt. Nagawwa?

Whether the plaintiff is entitled for the relief claimed in the suit?

What decree or order?"

In support of his case, plaintiff examined himself as P.W.1 and another witness as P.W.2. He produced 11 documents, which were marked as Exs.P.1 to P.11. The defendants examined one witness as D.W.1, who is defendant No. 1 and produced 5 documents which were marked as Exs.D.1 to D.5.

On the basis of the said evidence, the trial Court answered Issue Nos. 1 to 3 in the negative and consequently, dismissed the suit with cost of Rs. 2000/-, by judgment and decree dated 18/04/2009.

Being aggrieved by the judgment and decree of the trial Court, the plaintiff preferred R.A. No. 5/2009 before the first appellate Court.

On hearing the learned counsel for respective parties, the first appellate Court framed the following points for its consideration:--

"1. Whether the plaintiff is the husband and legal heir of deceased Smt. Nagawwa?

Whether the plaintiff is entitled to receive the service benefits of late Smt. Nagawwa?

Whether the judgment and decree under appeal are contrary to law, facts and evidence on record?

Whether there are any grounds for this court to interfere with the judgment and decree under appeal?

What order or decree?"

It answered Point Nos. 1 to 4 in the affirmative and decreed the suit of the plaintiff by setting aside the judgment and decree of the trial Court dated 18/04/2009 and declared that plaintiff is the husband and the legal heir of Smt. Nagawwa. Mandatory injunction was granted by directing defendant No. 1 to disburse the said benefits of late Smt. Nagawwa, within three months from the date of the order. Being aggrieved by the judgment of the first appellate Court dated 19/08/2010, the first defendant along with Neeravari Nigam Limited has preferred this second appeal.

I have heard learned counsel for the appellant and learned counsel for respondent No. 1 and perused the material on record. Notice to respondent Nos. 3 to 7 has been dispensed with on the prayer made by appellants'' counsel.

Appellants counsel contended that plaintiff''s suit was not maintainable inasmuch as the first appellant herein was not arrayed as a defendant in the suit. That defendant No. 2 has no independent power to comply with the directions given in the decree. Defendant No. 1, who is appellant No. 2 herein, is an officer of appellant No. 1. He therefore contended that the first appellate Court could not have granted a decree against defendant No. 2 alone.

Drawing my attention to the fact that this Court has permitted appellant No. 1 to prosecute the appeal, he contended that appellant No. 1 through appellant No. 2 has filed an application under Order XLI Rule 27 of CPC along with original documents, by way of additional evidence. If the said documents are taken into consideration, then the first respondent - plaintiff would not be entitled to any relief. He further contended that the trial Court had rightly dismissed the suit but the first appellate Court has misdirected itself and has held that the plaintiff is the husband and legal heir of deceased Nagawwa - the employee of the appellants and has consequently, directed appellant No. 2, to disburse her service benefits to him. He contended that if the application filed under Order XLI Rule 27 is allowed, then the matter would require a remand and a consideration is to be made by the first appellate Court. He therefore submitted that substantial questions of law would arise in the matter, which would call for a detailed hearing on admission of the appeal.

Per contra, learned counsel for respondent No. 1 - plaintiff, supporting the judgment and decree of the first appellate Court, contended that the points for consideration raised and answered by the first appellate Court clearly indicate that the plaintiff had proved his case and that the trial Court was not right in dismissing the suit. Therefore, the first appellate Court rightly decreed plaintiff''s suit by granting the twin relief of declaration and consequential mandatory injunction. He contended that the judgment and decree of the first appellate Court would not call for any interference in this appeal. He next submitted that the appellants have not made out any case for projection of their case under Order XLI Rule 27 of CPC in this proceeding. He contended that the documentary evidence sought to be produced as additional evidence were available even when the matter was pending before the trial Court. Some of the said documents were even produced in the earlier suit filed by the plaintiff herein namely, in O.S. No. 1/2003. But for the reasons best known to the first defendant, second appellant herein, the said documents were not produced in O.S. No. 87/2007. He contended that the application filed under Order XLI Rule 27 of CPC is without merit and the same may be dismissed. That no substantial question of law would arise in this appeal and the appeal may be dismissed in limine.

In response, learned counsel for appellant contended that there are strong reasons for preferring the application under Order XLI Rule 27 of CPC. Of course, appellant No. 1 was not a party to the proceeding. Reason being, on account of the plaintiff not arraying appellant No. 1 as a party in the suit, despite being aware of the fact that deceased Nagawwa was an employee of appellant -Neeravari Nigam, although, she may be working under appellant No. 2. He contended that when appellant No. 1 had no opportunity to contest the suit and this Court has permitted appellant No. 1 to prosecute the appeal, then opportunity must be given to appellant No. 1 to implead themselves in the matter after remand and therefore, in this context, application under Order XLI Rule 27 of CPC filed by the appellant assumes significance and the said application may be allowed.

Having heard learned counsel for parties and on perusal of the material on record, I am of the view that the appeal would have to be admitted on the following substantial questions of law:--

"1) Whether the application filed under Order 41 Rule 27 of CPC needs to be allowed?

2) Whether the first appellate Court was right in setting aside the judgment and decree of the trial Court and thereby, decreeing the suit?"

The appeal is admitted to consider the aforesaid substantial questions of law.

Order XLI Rule 27 of CPC speaks about production of additional evidence in the appellate Court. The said provision begins on a negative note. There is a bar on production of additional evidence, whether oral or documentary, in the appellate Court. But if the following circumstances mentioned in the rule prevail, then the appellate Court may allow such evidence or document to be produced or witness to be examined:--

"(i) Where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted;

(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, alter the exercise of due diligence, be produced by him at the time when the decree appealed against was passed;

(iii) the appellate Court requires any document to be produced or any witness to be examined to enable him to pronounce judgment, or for any other substantial cause."

Where additional evidence is allowed to be produced by an appellate Court, the Court has to record the reasons for its admission.

From the material on record, it is noted that the first respondent has sought a declaration that he is the husband of deceased Nagawwa, who was an employee working in the office of defendant No. 1. It is now established that defendant No. 1 is an Officer of appellant No. 1. Appellant No. 1 was not made a party in the suit. Nevertheless, the trial Court dismissed the suit. But in appeal, the first appellate Court reversed the judgment and decree of the trial Court by granting a declaration that the respondent - plaintiff was the husband of deceased Nagawwa and a consequential relief of disbursement of service benefits and direction has been issued in substance to appellant No. 1 through appellant No. 2 herein, although appellant No. 1 was not a party before the first appellate Court. The appellants have preferred the application under Order XLI Rule 27 of CPC, seeking to bring on record the following documents:--

"01. Sale Deed dated 15/02/1995.

Affidavit of late Smt. Nagawwa dated 28/01/2002.

C.C. of Complaint of late Smt. Nagawwa Kareppa Appoji to Dy.S.P. and others dated 02/05/2002.

A.D. receipts of complaint dated 03/05/2002.

Officer Order issued by Superintending Engineer dated 08/05/2002.

C.C. of reply by D.C. dated 18/05/2002.

Letter of C.E. to S.E. dated 27/05/2002.

Letter of late Smt. Nagawwa to A.E.E., dated 29/05/2002.

Application of Smt. Yallawwa A. Kambali seeking terminal benefits of late Smt. Nagawwa, dated 29/07/2002.

Funeral Bill paid to Smt. Yallawwa dated 05/08/2002.

Ex. D-2 report of murder of Smt. Nagawwa by her brother, published in Kannada Prabha Daily News Paper dated 10/08/2002.

Application by Kareppa Appoji for terminal benefits dated 24/09/2002.

C.C. of plaint in O.S. No. 1/2003 dated 20/12/2002.

C.C. of deposition of P.W.1 in O.S. No. 1/2003 dated 20/12/2002.

Judgment in O.S. No. 1/2003 dated 28/10/2005.

Letter of Tahasildar dated 08/06/2006, with attested copy of Survivor Certificate."

It is the case of the appellants that had these materials been produced before the trial Court, or at any rate, before the first appellate Court, then the judgment and decree of the first appellate Court would not have been the same, as has been in the order impugned herein. It is contended by appellants'' counsel that in the original documents produced along with the application, deceased Nagawwa had stated that her husband was Kareppa Appoji and not the plaintiff herein. The first appellate Court had no opportunity to look at those documents. Hence, it is contended that the application filed under Order XLI Rule 27 r/w Section 151 of CPC, may be allowed, so that, first appellate Court on considering the additional evidence produced by the appellants herein in juxtaposition, with the evidence already let in by the parties, could come to a conclusion as to whether indeed the plaintiff is entitled to the relief sought by him.

I have perused the aforesaid original documents annexed to the application filed under Order XLI Rule 27 of CPC and find that the documentary evidence by way of additional evidence must be allowed and that the appellants have made out a case for production of additional evidence under Order XLI Rule 27 of CPC, particularly, because appellant No. 1 was not a party before the Courts below and that party has to disburse the terminal amounts to plaintiff in case he succeeds. On that short ground alone, I am of the view that there is substantial cause made out for production of the additional evidence. In the circumstances, the application for additional evidence is allowed filed under Order XLI Rule 27 r/w Section 151 of CPC is allowed.

What follows is the fact that the additional evidence would have to be considered along with the evidence already on record. For that purpose, it is just and necessary to set aside the judgment and decree of the first appellate Court and remand the matter to that Court for the purpose of taking on record additional evidence in accordance with law and considering the same along with the evidence on record and thereafter, to consider the regular appeal filed by the plaintiff. For that purpose, the judgment and decree of the first appellate Court would have to be set aside by answering the substantial question of law No. 1 raised in the appeal in favour of the appellants.

In view of the above, substantial question of law No. 2 would not call for a categorical answer at this stage of the proceeding and it is accordingly, held that no opinion on the trial Court judgment is expressed at this stage.

The appeal is disposed of by remanding the matter to the first appellate Court, by directing the said Court to implead appellant No. 1 as respondent in appeal, to give an opportunity to the appellants to lead additional evidence, to permit the plaintiff to cross-examine the appellants and also permit the plaintiff herein, to let in any additional evidence in accordance with law. For that purpose, office is directed to transmit the application along with the original documents to the concerned first appellate Court, subject to appellants'' counsel filing copies of the same for the purpose of record before this Court.

Appellants and respondent Nos. 1 and 2 are represented by their respective counsel. They are directed to appear before the first appellate Court on 16-03-2016, without expecting any separate notice from that Court. First appellate Court to issue notice to respondent Nos. 3 to 7 and thereafter, to dispose of the appeal in accordance with law.

Appeal is disposed of in the aforesaid terms. Parties to bear their respective costs.