IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION. No.41102 OF 2014 AND WRIT PETITION No.44483 OF 2014(GM-CPC) BETWEEN :
1. Barikara Godeppa, S/o. late Holi Basappa, Aged about 63 years, 2. Barikara Rajappa, S/o. Barikara Godeppa, Aged about 38 years, 3. Barikara Maruthi, S/o. Barikara Godeppa, Aged about 32 years.
Petitioner Nos.1 to 3 are Residing at Nittur village, Harapanahalli Taluk, Davanagere District-583 131. ... Petitioners (By Smt. Rakshitha V.N., Advocate for Sri. K.Raghavendra Rao, Advocate) AND Barikara Sanna Basappa, S/o. late Holi Basappa, Aged about 56 years, Residing at Nittur Village, Harapanahalli Taluk, Davanagere District-583 131. ... Respondent (By Sri. Jagadeeshgoud Patil, Advocate) These writ petitions are filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned orders passed by the learned Senior Civil Judge and JMFC, Harapanahlli in R.A.No.1/2011 dated 14.08.2014 vide Annexure-J and allow this writ petition and etc.
These writ petitions coming on for Preliminary Hearing in ‘B’ Group, this day, the court made the following:-
O R D E R Petitioner being the respondent-defendant in R.A.No.1/2011 is invoking the writ jurisdiction of this Court assailing the common order dated 14/8/2014 made by learned Senior Civil Judge and JMFc at Harapanahalli, whereby the respondent-plaintiff’s applications in I.A.III and IV for amendment of the plaint and for production of additional evidence respectively have been allowed. After service of notice, the respondents have entered appearance.
2. Smt. Rakshitha V.N., learned counsel appearing for the petitioners submits that the impugned orders permitting amendment of pleadings and production of additional evidence suffer from an error apparent on the face of the record in as much as, the applications filed by the contesting respondent herein in I.A.III and IV ought to have been taken up along with the main appeal in R.A.No.1/2011 and not prior to its hearing stage. In support of her submission, learned counsel for petitioners banks upon the decision of the Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another (2012) 8 SCC 148 at paragraph No.52 and a decision of a Co-ordinate Bench of this Court in the case of Sreenivasa Krishnappa Bilage Vs. Shivappa Channabasappa (1988) 2 Kant LJ 388. Learned counsel appearing for the respondents per contra makes submission in justification of the impugned order.
3. I have heard the learned counsel for the petitioners and the learned counsel for the respondent. I have perused the petition papers and I have adverted to the rulings cited at the Bar.
4. Respondent’s Civil Suit in O.S.No.249/2007 for a decree of permanent injunction having been dismissed, an appeal in R.A.No.1/2011 has been pending on the file of the learned Senior Civil Judge and J.M.F.C, Harapanahalli. In this pending appeal, the respondent-plaintiff had filed applications in I.A.III and IV, seeking leave of the Court for amendment of the plaint and for production of additional evidence, respectively; these applications have been allowed by the Lower Appellate Court and the main appeal is still kept pending. There is a lot of force in the submission of the learned counsel for the petitioner- defendants that the said applications could have been taken up for considerations only when the main appeal is being heard and not before that stage.
5. The Apex Court in the case of Ibrahim Uddin and another (supra) at paragraph No.52 has observed under;
“52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.”
6. Similarly, a Co-ordinate Bench of this Court in the case of Sreenivasa Krishnappa Bilage (supra) has observed that this is a case, where application for leave to produce additional evidence was involved. Paragraph No.4 of the judgment reads as under:
“4. This Court in C.R.P.1213/74 disposed of on 2-8- 74, has held that:
“When a party to an appeal seeks amendment of his pleadings, the proper stage at which the amendment prayed for should be allowed or refused is the stage of hearing of the appeal. It is only at the hearing of the appeal that the Court can say as to what are the real questions in controversy between the parties. Where the Court dismissed an application for amendment before the stage of hearing, the order is liable to be set aside under Section 115 C.P.C.”
7. In view of the aforesaid settled position of law, which the Lower Appellate Court has not kept in view, these writ petitions are allowed; the impugned order dated 14/8/2014, whereby I.As.III and IV of the respondent- plaintiffs were allowed, is set at naught. The matter is remanded to the Lower Appellate Court for consideration afresh, in accordance with law, and keeping in view the judgment of this Court dated 05/11/2012 in M.S.A.No.69/2012 (RO) between the parties.
No costs.
NR/-
Sd/- JUDGE