IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 39886 OF 2014 (GM-CPC) BETWEEN:
SMT. RADHADAS W/O NIRANJANDAS AGED ABOUT 55 YEARS RESIDENT OF ARJUNA NILAYA KUMBASHI VILLAGE AND POST KUNDAPURA TALUK UDUPI DISTRICT – 576 217 … PETITIONER (BY SRI. HAREESH BHANDARY T, ADV.,) AND 1. KAMALA ACHARTHY SINCE DECEASED 2. SMT. JANAKI ACHARTY SINCE DECEASED RESPONDENT NOS 1 & 2 ARE DECEASED REPRESENTED BY SRI. MARUTHI RAMACHANDRA ACHARYA S/O JANAKI RAMACHANDRA ACHARYA AGED ABOUT 46 YEARS RESIDENT OF KUMBASHI VILLAGE KUNDAPURA TALUK – 576 217 … RESPONDENTS (BY SRI. NEERAJA KARANTH, ADV FOR SRI. K.SHRIHARI, ADV.,) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEXURE-A DATED 28.06.2014 MADE ON I.A. NO. 6 IN R.A. NO. 10/2010 BY THE COURT OF SENIOR CIVIL JUDGE, KUNDAPURA, UDUPI DISTRICT THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner who happens to be the appellant in the Appellate Court in R.A. No.10/2010 grieves against the order dated 18.07.2014 whereby, his application in IA No.6 filed under Order XLI Rule 27 read with Section 151 of CPC, 1908 instead of being considered along with the main matter has been independently looked into and rejected by the learned Senior Civil Judge, Kundapura. Learned counsel for the respondents makes submission in justification of the said order.
2. The question as to how an application in IA No.6 filed in an appeal under Order XLI Rule 27 of CPC, 1908 seeking leave to produce additional evidence is to be treated is no longer integra; the Apex Court in the case of SATISH KUMAR GUPTA AND OTHERS VS. STATE OF HARYANA AND OTHERS, (2017) 4 SCC 760, has held that such an application needs to be taken up for consideration along with the main appeal itself, and this having not been done, there is error apparent on the face of the impugned order warranting indulgence of this Court.
3. In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the matter is remanded for consideration by the Court below afresh to along with the main matter, after affording an opportunity of hearing to both the stakeholders, all contentions having been kept open.
No costs.
Sd/- JUDGE Bsv