Karnataka High Court
Sri H Basavaraju vs Smt Jayalakshmi S Gupta on 12 November, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.546 OF 2015 (INJ)
BETWEEN:
1. SRI.H.BASAVARAJU
AGED ABOUT 40 YEARS
S/O HOMBAIAH
R/AT NO.75, 2ND CROSS
2ND MAIN ROAD
DEEPANAJALI NAGAR
MYSORE ROAD
BANGALORE - 560026.
2. SMT.NAGARANTHNA
AGED ABOUT 36 YEARS
W/O H.BASAVARAJU
R/AT NO.75, 2ND CROSS
2ND MAIN ROAD
DEEPANAJALI NAGAR
MYSORE ROAD
BANGALORE - 560026. ... APPELLANTS
(BY SRI.M. R. RAJAGOPAL, ADVOCATE FOR
SRI.RAJU S., ADVOCATE)
AND:
1. SMT.JAYALAKSHMI S. GUPTA
AGED ABOUT 57 YEARS
W/O LATE SATHYANARAYANA GUPTA
R/AT NO.1201, 5TH CROSS
5TH MAIN, L.N.COLONY
YESHWANTHAPURA
BANGALORE - 560022.
2
2. SRI.M.SHIVAKUMAR
AGED ABOUT 42 YEARS
S/O LATE M.S.MAHADEVAIAH
R/AT NO.109, H.V.R. LAYOUT
4TH MAIN ROAD
MAGADI MAIN ROAD
BANGALORE - 79.
3. SRI.G.LINGIAH
AGED ABOUT 50 YEARS
S/O LATE M.GANGAIAH
R/AT NO.2/1, 2ND CROSS
2ND MAIN, DEEPANJALI NAGAR
MYSORE ROAD
BANGALORE - 560026.
...RESPONDENTS
(BY SRI.PARASHURAM R. HATTARAKIHAL, ADVOCATE - R1;
R2 AND R3 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THROUGH VIDEO CONFERENCING THIS DAY, SITTING AT
DHARWAD, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.M.R.Rajagopal learned counsel on behalf of Sri.Raju S. for appellants has appeared through video 3 conferencing. Sri.Raju S. learned counsel for appellants and Sri.Parashuram R. Hattarakihal for respondent No.1 have appeared in person.
This is an appeal from the Court of XXXIX Additional City Civil Judge, Bangalore City.
2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.
3. The facts of the case are simply stated as under:-
It is stated that plaintiff is the sole and absolute owner of the property bearing site No.56 carved out of survey No.14/6, situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk now known as Municipal No.56, B.M.P Ward No.41, PID No.41/28/56 situated at K.H.Ranganatha Layout, Gali Anjaneya Temple, Bangalore measuring East to West 40 feet and North to South 30 feet. The plaintiff acquired the said property under a registered sale deed dated 24.05.1982 executed 4 by Binny Mills workers and other Labourers Co-Operative Housing Society Ltd., Bangalore.
After the purchase of the property, the Plaintiff approached the revenue authorities for effecting the entries in her favor and after following necessary formalities as required under the law, the then Bangalore Mahanagara Palike collected the betterment charges and other incidental charges in respect of the suit schedule property and thereafter effected the entries in her name. The plaintiff is paying the requisite tax to the authority concerned. The plaintiff has not alienated or encumbered the property and she is in peaceful possession and enjoyment of the same without anybody's interference.
It is averred that defendants are not having any right, title and interest over the suit schedule property. The first defendant in collusion with others filed suit in O.S.No.2960/2005 for the relief of specific performance of contract against second and third defendants. Plaintiff came to know about the suit and she filed an application to 5 come on record and the Court allowed the application and permitted her to come on record as a party to the suit. As things stood thus, defendants in collusion with each other tried to interfere with plaintiff's peaceful possession and enjoyment of the suit property. She approached the jurisdictional police on 26.11.2008 for necessary protection and to take necessary action against the defendants.
Contending that the defendants tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property during 2008, she sought the aid of the Court and filed suit for permanent injunction.
After the issuance of the suit summons, the first defendant appeared and filed written statement. He denied the plaint averments. He Contended that plaintiff has no locus-standi to file the suit and there is no cause of action and prayed for the dismissal of the suit.
It is contended that originally the suit schedule property was part of property bearing No.14/6, presently 6 Bangalore Corporation Division No.41 situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk was acquired by the second defendant under a gift deed dated 16.03.2004. He entered into an agreement of sale with the second defendant in respect of the aforesaid land to the extent of 90 X 360 feet which includes the suit schedule property on 17.03.2004. It is stated that he has paid the sale consideration in advance to the second defendant but the second defendant failed to perform his part of the contract. He has not executed a registered sale deed. Hence, he contended that the suit for specific performance of contract is filed against defendants 2 and 3 in O.S.No.2960/2005 and an application for temporary injunction was filed and the Court granted an injunction restraining defendants 2 and 3 from alienating or encumbering the suit schedule property. It is also stated that the plaintiff contested the said suit. It is contended that plaintiff is not in possession of the suit schedule property and hence prayed for the dismissal of the suit. 7
The second and the third defendant filed separate written statement and they denied the plaint averments. They contended that the grandfather of the second defendant namely Byrappa purchased the land bearing Sy.No.14/6 measuring 37 Guntas of land situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk from the original and rightful owner Muni Ramappa under a registered sale deed dated 01.04.1959. After the purchase of the property, all the revenue entries have been transferred to the name of Byrappa and his grandfather Byrappa paid requisite tax to the authority concerned. It is averred that Byrappa executed a registered gift deed in favor of H.Basavaraju - the second defendant in respect of land bearing No.14/6 to an extent of 90 X 360 feet situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk on 16.03.2004. After the execution of the gift deed, all the revenue records have been transferred to the name of H.Basavaraju - the second defendant.
8
It is contended that H.Basavaraju - the second defendant executed a registered gift deed in favor of Smt.Nagarathna the third defendant on 31.08.2004. After the execution of the gift deed, all the revenue records have been transferred in the name of Smt.Nagarathna - the third defendant. The third defendant has put up construction in the portion of the area. She is residing in the said property and she has obtained the power connection to the said house she has also paid taxes in respect of the property in question. Accordingly, they prayed for the dismissal of the suit.
On the basis of the rival pleadings of the parties, the Trial Court framed the following issues:-
1. Whether the plaintiff prove that she is in possession and enjoyment of the plaint schedule property on the date of suit?
2. Whether the plaintiff proves that defendants are trying to interfere with her possession over the suit schedule property?9
3. Whether the plaintiff is entitled for the relief of permanent injunction as sought?
4. What order or decree?
Plaintiff got examined as PW1 and produced twenty documents which were marked at Ex.P.1 to Ex.P.20. On behalf of defendants, the second defendant got examined as DW1 and produced thirty-four documents which were marked as Ex.D.1 to Ex.D.34. One more witness namely R.Lakshminarayana was examined as DW 2.
On the trial of the action the suit came to be decreed. Hence this Regular First Appeal is filed under section 96 of the CPC.
4. Sri.M.R.Rajagopal learned counsel on behalf of Sri.S.Raju submits that the judgment and decree of the Trial Court is contrary to the facts and law.
Next, he submitted that there is a serious dispute with regard to the title of the plaintiff hence suit for bare injunction is not maintainable. It is also submitted that the 10 Trial Court has not framed proper and necessary issues as required under Order 14 of the code of Civil Procedure.
A further submission was made that in a suit for injunction, plaintiff has to prove his or her possession over the property as on the date of filing of the suit. Admittedly the plaintiff has failed to prove her possession over the suit schedule property as on the date of filing of the suit. The Trial Court without ascertaining the factum of possession has erroneously decreed the suit.
It is further submitted that that the Trial Court has failed to notice that the plaintiff has failed to identify the suit schedule property.
It is submitted that the plaintiff admitted in her evidence that she resides in a different address and not in suit schedule property, having deposed such, she cannot contend that she is residing in the suit schedule property.
Counsel vehemently submitted that the plaintiff and her husband were not the members of Binny Workers and 11 Labourers Co-Operative Housing Society Limited. Hence, the society could not have allotted the site in favor of non- members.
It is further contended that the defendants have put up a compound wall and constructed a house. They have obtained power and electricity connection and they have also paid requisite tax to the authority concerned. The defendants are in physical possession and enjoyment of the suit schedule property. The Trial Court has failed to appreciate the documents produced by the defendants, which clearly proves the title and possession of the defendants in respect of the land bearing Sy.No.14/6 to the extent of 90 feet X 360 feet situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk.
Lastly, he submitted that viewed from any angle the judgment and decree of the Trial Court lacks judicial reasoning. Accordingly, he submits that the judgment and decree of the Trial Court is liable to be set-aside and the appeal may be allowed.
12
Learned counsel for appellants relied upon the following decisions.
1. (2008) 4 SCC 594 - ANATHULA SUDHAKAR VS.
P.BUCHI REDDY (DEAD) BY LRS. AND
OTHERS.
2. (2015) 13 SCC 673 - ZARIF AHMAD (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER VS. MOHD. FAROOQ.
3. Decision in T.V. RAMAKRISNHNA REDDY VS. M.MALLAPPA AND ANOTHER - CIVIL APPEAL NO.5577/2021 (SPECIAL LEAVE PETITION (C) NO.10621/2020)
4. Decision in SRI M.MALLAPPA VS. Sri T.V.RAMAKRISHNA REDDY AND ANOTHER -
RFA No.123/2012.
5. Sri.Parashuram R. Hattarakihal learned counsel for respondent No.1 justified the judgment and decree of the Trial Court.
Next, he submitted that the Trial Court in extenso referred to the material on record and found that plaintiff 13 is in peaceful possession and enjoyment of the suit schedule property as on the date of filing of the suit and accordingly decreed the suit.
A further submission was made that the suit giving rise to this appeal was filed by the plaintiff for injunction simpliciter. Hence question of looking into the title does not arise.
Learned counsel vehemently contended that the law is well established that in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases plaintiff has to seek the relief of declaration. However, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
14
It is further submitted that in the present case, the defendants have not seriously objected the title. A feeble and vague objection was raised.
Counsel vehemently contended that the plaintiff is the absolute owner and in possession of the suit schedule property. In view of illegal interference, she was constrained to seek the aid of the Court and hence, a suit for bare injunction was filed.
It is also submitted that plaintiff has proved prima facie ownership and lawful possession over the suit schedule property as on the date of filing of the suit. Hence, she is entitled for permanent injunction.
It is further contended that the appeal is continuation of the suit and High Court as the first court of appeal can re-examine and re-appreciate the evidence.
Lastly, he submits that the appellants have not made out any good grounds to interfere with the judgment and 15 decree of the Trial Court hence he prayed for the dismissal of the appeal.
Learned counsel relied upon the following decisions:
1. (2003) 8 SCC 745 - NARBADA DEVI GUPTA VS.
BIRENDRA KUMAR JAISWAL AND ANOTHER.
2. (2007) 2 SCC 619 - SHANTILAL KESHARMAL GANDHI VS. PRABHAKAR BALKRISHNA MAHANUBHAV.
3. ILR 2014 KAR 4716 - VASUDEV AND OTHERS VS. TUKARAM BHIMAPPA NAIK AND OTHERS.
4. (2019) 17 SCC 692 - JHARKHAND STATE HOUSING BOARD VS. DIDAR SINGH AND ANOTHER.
5. (2021) 2 SCC 718 - IQBAL BASITH AND OTHERS VS. N. SUBBALAKSHMI AND OTHERS.
6. Heard the contentions urged on behalf of the parties and perused the records with care. The points which would arise for consideration are:- 16
1) Whether the suit simpliciter for permanent injunction without seeking declaration of title is maintainable under law?
2) Whether the judgment and decree of the trial court is sustainable in law?
The facts have been sufficiently been stated. The suit giving rise to this appeal was filed by the plaintiff for permanent injunction.
It is the contention of the plaintiff that she purchased the suit schedule property from Binny Mills society under a registered sale deed dated 24.05.1982. She is in possession of the suit property.
The second and the third defendants contended that the grandfather Byrappa purchased the property in the year 1959 and he executed a registered gift deed in favor of the second defendant and the second defendant in turn has executed a registered gift in favor of his wife the third defendant. They contended that they are the absolute 17 owners in possession of the suit property. They specifically denied the title of the plaintiff and her predecessors.
The plaintiff brought an action against the defendants seeking the relief of permanent injunction. Plaintiff has produced the sale deed.
Ex.P.1 is the sale deed dated 24.05.1982 executed by Binny Mills Workers and other Labourers Co-Operative Housing Society Limited. Ex.P.2 is the possession certificate dated 09.03.1983, issued by the Binny Mills Workers and other Labourers Co-Operative Housing Society Limited.
Plaintiff was examined herself as PW1. In her chief examination, she has stated that she is the absolute owner in possession and enjoyment of the property bearing Site No.56 carved out of Sy.No.14/6 of Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk, now coming within the limits of B.M.P Ward No.41 and assigned new Municipal No.56, PID No.41/28/56 K.H.Ranganatha Layout, 18 Gali Anjeneya Temple, Bangalore measuring East to West 40 feet and North to South 30 feet.
In the cross-examination she has stated that she is residing in the suit schedule property. She has also deposed that she is residing in the address given in the examination in chief. Hence, it would be relevant to refer to the relevant extract of the cross-examination of PW-1.
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She has also deposed that she is residing in the suit house since 4-5 years till this day. She has not produced any document to show that I am in possession of suit property. The second defendant - H.Basavaraju was examined as DW1. He has deposed that his grandfather Byrappa purchased the land bearing No 14/6, measuring 37 Guntas situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South taluk from rightful owner Muni Ramappa under a registered sale deed dated 24.03.1960. He has also deposed that after purchase of the property, the revenue entries are made in the name of 20 Byrappa. The grandfather Byrappa executed a registered gift deed in respect of the property bearing Sy.No.14/6 situated at Deevatige Ramanahalli Village, Kengeri Hobli, Bangalore South Taluk to an extent of 90 X 360 feet in favor of the second defendant on 16.03.2004. The said Byrappa also sold a portion of the property bearing Sy.No.14/6 to an extent of 0-07.5 Guntas in favor of one Lingaiah on 29.03.2004.
It is relevant to note that the second defendant executes a registered gift deed in favor of his wife Smt.Nagarathna -the third defendant on 31.08.2004 in respect of the Sy.No.14/6. The gift deeds are produced and marked as Ex.D.17 and 18.
It is significant to note that the defendants have specifically denied the title of the plaintiff over the suit schedule property and also the alleged acquisition of the property by the Binny Mills Society.
21
In this regard, it would be relevant to refer to the documents produced by the defendants.
Ex.D.22 is the application dated 16.02.2010 filed by the second defendant under Right to Information Act 2005 seeking information regarding the functioning of the society at No.150, K.H.Ranganath colony, Bangalore.
Ex.D.23 is the information furnished by the Co- operative department dated 19.02.2010. The information given is that there are no documents regarding the functioning of the society at No.150, K.H.Ranganath colony, Bangalore.
Ex.D.24 and 25 are the applications dated 12.04.2011 and 12.09.2011 filed by the second defendant seeking information regarding sale of sites to the members of the society for which the endorsement issued by the office of the D.C on 30.04.2011 and 21.09.2011.
Ex D-26 is one more application dated 24.11.2011 filed by one R.Laxminarayana under the Right to 22 Information Act 2005 seeking information regarding purchase of the property bearing Sy.No.14/5 and 14/6 during the year 1980 to 1985. The information was furnished on 15.12.2011 stating that there are no documents to show that survey No.14/5 and 14/6 are registered in the name of Binny Mill Labour Co-Operative Housing society Limited during the year 1980 to 1985.
Ex.D.27 is the application dated nil filed by the second defendant H.Basavaraju under the Right to Information Act 2005 seeking information from the Bangalore Development Authority regarding survey No.14/6. The BDA furnished information on 27.04.2010 stating that it has not approved the plan and the layout.
The cursory examination of the facts and material evidence on record depicts that the plaintiff in Ex.P.1 & P2 has submitted the Sale Deed and Possession Certificate of the suit schedule property granted to her by the Co-Operative Society. But the second defendant in the instant case, through the process of RTI has questioned 23 the source title of the suit schedule property, acquired by the Co-Operative Society. The various documents produced by the defendant, obtained in the RTI, questioning the land in Sy.No.14/6 being acquired, the Sale Deed of the acquisition, Khata certificate in favor of the Co-Operative Society. The information from the RTI clearly depicts that there exists no such document as to the acquisition of land in Sy.No.14/6 and the Site No.56 i.e., the suit schedule property by the Co-operative society. The absence of these necessary documents raises a serious question on the title of the suit schedule property acquired by the plaintiff from the Co-operative Society.
The cursory examination of the facts and material evidence on record depicts that the plaintiff is claiming ownership over the suit schedule property under Ex.P1. It is also contended that Possession Certificate is issued and she is in lawful possession of the suit schedule property. It is significant to note that Ex.P1 is executed by Binny Mills workers and other Labours Co-Operative Housing Society 24 Limited. Ex-P2 is the Possession Certificate issued by Binny Workers and other Labourers Co-Operative Housing Society Limited.
After careful perusal of the material on record, the exhibits produced by the defendants create a serious doubt on the source title of the suit schedule property.
I have no hesitation to say that the Trial Court has not properly considered the oral and documentary evidence. There is a reference to some of the documents and its particulars and contents are not appreciated by the Trial Court while recording the findings.
This Court after considering all the relevant facts and material evidence on record, is of the opinion that there exists a serious doubt on the source title of the suit schedule property.
It seems to me that the Trial Court in this regard does not sufficiently bear in mind that the question is not mere question of proof of possession but also that of title. 25 Indeed, it is a matter relating to the title; there is a plea of title and counter title interse between the plaintiff and the first and the second defendants.
While addressing the arguments, learned counsel Sri.Parashuram R.Hattarakihal counsel for plaintiff strenuously urged that there is no serious dispute with regard to title. He has drawn the attention of the Court to the decision of the Hon'ble Apex Court reported in IQBAL BASITH AND OTHERS VS. N. SUBBALAKSHMI AND OTHERS reported in (2021) 2 SCC 718 and sought to urge that the defendants have not seriously objected the title. A feeble and vague objection was raised. The defendants have not raised genuine objection.
By way of answer, Sri.M.R.Rajagopal learned counsel submitted that the third defendant is the wife of the second defendant and she is having right, title and interest over the suit property and she is in possession and enjoyment of the property bearing Sy.No.14/6 to an extent of East to West 90 feet and North to South 360 feet having 26 acquired under the registered gift deed dated 31.08.2004. Counsel sought to urge that the defendants have raised a serious objection regarding the title and it is not a feeble and vague objection as contended by learned counsel for plaintiff.
Counsel has drawn the attention of the Court to the decision reported in ANATHULA SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC 594 and the latest decision of the Hon'ble Apex Court in Civil Appeal No.5577/2021.
7. I have considered the contentions with care. I have also perused the decisions cited by respective counsel.
The plaintiff claims to be the owner of the suit property on the basis of a sale deed which is said to have been executed by Binny Mills in her favor on 24.05.1982. On the other hand, the defendants 2 and 3 specifically denied the title and claims that the third defendant is the 27 absolute owner. She also claims to be in peaceful possession and enjoyment.
The plaintiff has not produced any other document except the sale deed and possession certificate issued by the Binny Mills Society. She has not produced documents to show that how the society acquired the title to the property.
It is needless to say that the plaintiff has not produced any independent evidence except self-testimony to prove the possession over the schedule property.
In the present case, there is plea of title and counter title interse between the plaintiff and the second and third defendants. Hence, it cannot be said that the dispute raised by the defendants with regard to title is a feeble and vague objection.
It could thus clearly be seen that this is not a case where the plaintiff can be said to have a clear title over the suit property or that there is no cloud on plaintiff's title 28 over the suit property. In such circumstances, the suit for bare injunction is not maintainable It is perhaps well to observe that when a genuine dispute is raised regarding title, bare suit for injunction is not maintainable. The issue is no more res integra.
In ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC 594, the Hon'ble Apex court has summarized as under:
21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.
Where there is merely an interference with the plaintiff's lawful possession or threat of 29 dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating 30 to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
31
It is also relevant to refer to the decision of the Hon'ble Apex Court in T.V.RAMAKRISHNA REDDY VS.
M.MALLAPPA AND ANOTHER (Civil Appeal No.5577/2021) decided on 07.09.2021. The Apex court has held that when there is a genuine dispute raised with regard to title and the same is not free from cloud, suit for bare injunction is not maintainable.
Accordingly, the points are answered. In the last resort, counsel - Sri.Parashuram R.Hattarakihal for respondent-1 submits that he has filed an application - I.A.No.1/2019 under Order 41 Rule 27 (1) (aa) of CPC for production of additional documents. The documents which is sought to be produced is the sale deed said to have been executed by Binny Mills Workers and Other Labours Co-operative Housing Society Limited in favour of one Smt.Kannamma on 04.03.1983.
The application is accompanied by an affidavit filed by the first respondent - Smt.Jayalakshmi S.Gupta stating 32 that the property bearing Sy.No.14/6 was acquired by Smt.Kannamma W/o.V.M.Rajagopala from Binny Mills Workers and other Labours Co-operative Society Limited by virtue of registered sale deed dated 04.03.1983 which clearly reveals that Binny Mill Workers & Other Labours Co-operative Housing Society Ltd., executed the above sale deed by forming Sites in Sy.No.14/6 to members and other labours. Therefore, the said document is crucial and material document.
While arguing the matter, Sri.Parashuram R.Hattarakihal, learned counsel vehemently urged that the application filed for production of additional documents may be taken note of and appropriate orders may be passed.
I have carefully perused the application and also noted the submission in this regard.
As could be seen from the document which is produced along with the application, the same is dated 33 04.03.1983 and suit was filed in the year 2008. The respondent-1 has not explained the reasons for non- production of the said document before the trial Court.
Under Rule 27 of Order 41, production of additional evidence, whether oral or documentary is permitted only under three circumstances which are: 1) the trial Court had refused to admit the evidence though it ought to have been admitted 2) the evidence was not available to the party, despite exercise of due diligence; and 3) the Appellate Court required additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.
The true test is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. When the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. 34
The production and leading evidence in appellate Court, oral or documentary, is not a matter of right, or ipso facto. I would observe that the parties can produce evidence only when the conditions laid down in Rule 27 are satisfied. In the present case, the conditions are not satisfied. Accordingly, I.A.No.1/2021 is rejected.
To summarize my conclusion I would hold that the suit for bare injunction is not maintainable. The suit is liable to be dismissed.
In the result the appeal is allowed. The judgment and decree dated 09.01.2015 passed by the Court of XXXIX Additional City Civil Judge, Bangalore City, in O.S.No.8000/2008 is set aside.
Parties to bear their costs.
Sd/-
JUDGE TKN