SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Shakune Gowda vs Smt Dyavamma on 27 March, 2017

1

IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 27TH DAY OF MARCH, 2017

BEFORE

THE HON’BLE MR.JUSTICE K. N. PHANEENDRA

R.S.A No. 1224/2013 (DEC INJ)

BETWEEN

SHAKUNE GOWDA,
S/O LATE RANGE GOWDA,
AGED ABOUT 69 YEARS,
R/AT JAVENAHALLI VILLAGE,
SHANKARANAHALLI POST,
KATTAYA HOBLI,
HASSAN TALUK-573201
HASSAN DISTRICT. … APPELLANT

(BY SRI. MAHESHA A. S., ADVOCATE)

AND

1. SMT. DYAVAMMA,
W/O RANGAPPA GOWDA,
AGED ABOUT 72 YEARS,

2. SMT. SAKUNNAMMA,
W/O GUNDAPPA GOWDA,
AGED ABOUT 69 YEARS,

BOTH 1 2 ARE R AT
HANUMANTHAPURA VILLAGE,
KASABA HOBLI,
HASSAN TALUK-573201
HASSAN DISTRICT. … RESPONDENTS

(BY SMT. A. R. SHARADAMBA, ADV. FOR R-1.
R-2 SERVED UNREPRESENTED. )
2

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT DECREE DTD 27.4.2013 PASSED IN
R.A.No.242/2009 ON THE FILE OF ADDITIONAL DISTRICT
JUDGE, HASSAN, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 7.8.2009
PASSED IN OS.NO.277/2003 ON THE FILE OF PRINCIPAL
CIVIL JUDGE (SR.DN.), HASSAN.

THIS RSA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Heard the learned counsel for the appellant and the

respondents.

2. The following substantial question of law is

framed and heard on the substantial question of law also.

“Whether the First Appellate Court
without disposing of the application filed under
order 41 Rule 27 of CPC, disposing of the
appeal isolatedly, is illegal?”

3. Before answering the above said question, the

brief factual matrix of this case requires to be looked into.

4. The appellant is the plaintiff before the trial

Court has filed a suit in O.S. No.277/2003 for declaration

and as well as for various reliefs on the ground that, the

plaintiff’s father-Rangegowda was an adopted son of a
3

lady by name Honnamma. After due contest, the said suit

came to be dismissed. The plaintiff has preferred the first

appeal in R.A. No.422/2009 on the file of the Additional

District Judge, Hassan. The learned District Judge,

concurring with the judgment of the trial Court has

dismissed the appeal and consequently affirmed the

judgment of the trial Court in dismissing the suit.

5. Learned counsel for the appellant has made

available the order sheet of the First Appellate Court and

also a copy of the application filed by him before the First

Appellate Court under Order 41 Rule 27 of CPC. The order

sheet of the Appellate Court discloses that, on 12.11.2010,

the respondents have filed their objections for application

filed by the appellant. Arguments on the said application

and main matter were heard and the case was posted for

further hearing on 06.12.2010. Subsequently, on various

occasions, the Court has heard the arguments and finally

on 22.04.2013, the case was posted for judgment. While

passing the judgment, the First Appellate Court has not

even whispered about the application filed under Order 41

Rule 27 of CPC nor passed any orders on merits of the said
4

application. Before this Court apart from raising other

grounds, the appellant has also taken up a ground that the

judgment of the First Appellate Court is bad in law, as the

appellate Court having heard on the application filed

under Order 41 Rule 27 of CPC, has not disposed of the

said application in accordance with law.

6. In this background, it is worth to refer a

decision of the Hon’ble Apex Court reported in AIR 2009

SC 354 [Jatinder Singh and Another (Minor Through

Mother) Vs. Mehar Singh and Others], wherein it is

observed that, the appellant having filed application for

adducing additional evidence, dismissal of the appeal

without disposing of the application for additional

evidence, is improper. The Hon’ble Apex Court though was

requested to consider the application under Order 41 Rule

27 of CPC by itself, but the Court has declined for the

same and made the following observation at Para-6 its

judgment:-

“We make it clear that we have not gone
into the merits as to whether the application
for additional evidence under Order 41 Rule 27
5

of the Code of Civil Procedure should be
allowed or not, which shall be decided by the
High Court at the time of decision of the
second appeal in accordance with law. We also
make it clear that we have not gone into the
merits of the second appeal which shall also be
decided by the High Court along with the
application under order 41 Rule 27 of the Code
of Civil Procedure. Considering the facts and
circumstances of the case, we request the High
Court to dispose of the second appeal at an
early date preferably within six months from
the date of supply of a copy of this order to it.”

7. In view of the above said observation of the

Hon’ble Apex Court, it is the Court before which an

application was filed is the proper Court to consider the

said application in accordance with law. The learned

counsel for the appellant has contended before this Court

that the tune and tenor of the contents of the application

filed by the appellant under Order 41 Rule 27 of CPC

discloses that the plaintiff/appellant wants to adduce some

more evidence with reference to the proof of his adoption

by showing the conduct of the parties, as the alleged
6

adoption has taken place prior to Adoption and

Maintenance Act.

8. In the above facts and circumstances, in my

opinion, the above substantial question of law is required

to be answered in the affirmative by this Court. Hence,

the following order:-

ORDER

The appeal is allowed. Consequently,
the judgment passed by the First Appellate
Court without considering the application under
Order 41 Rule 27 of CPC in RA No.242/2009
dated 27.04.2013 is bad in law and the same
is liable to be set aside. Consequently, the
matter stands remitted to the First Appellate
Court viz., Additional District Judge, Hassan,
to hear the appeal once again along with the
application under Order 41 Rule 27 of CPC and
dispose of the application and as well as the
appeal simultaneously or together in
accordance with law, within the outer limit of
six months from the date of receipt of a copy
of this order.

Learned counsel on both sides are hereby directed to

inform their respective counter parts before the First
7

Appellate Court to assist the Court for early disposal of the

appeal. The learned counsels submit that they will inform

their respective parties to appear before the First Appellate

Court on 17th April 2017 with a copy of this order.

In view of disposal of this appeal, IA No.1 filed for

stay does not survive for consideration. Accordingly, the

said application stands disposed of.

Sd/-

JUDGE

KGR*

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation