- 1 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.2307/2020 (GM-CPC) BETWEEN: 1. SRI. G. KARIYANNA S/O LATE GIDDAPPA AGED ABOUT 57 YEARS. 2. SRI. ERANNA @ VEERANNA S/O LATE GIDDAPPA AGED ABOUT 52 YEARS. BOTH ARE R/AT REDDYHALLY VILLAGE CHALLAKERE TALUK-577522 CHITRADURGA DISTRICT. 3. SMT. MUDDAKKA W/O SANNAPPA AGED ABOUT 82 YEARS R/AT EREHALLY VILLAGE HIRIYUR TALUK-577599 CHITRADURGA DISTRICT. …PETITIONERS (BY SRI. SIDDAPPA B.M. ADV.,) AND: 1. SRI. KARIYANNA S/O KARIYANNA AGED ABOUT 67 YEARS. 2. SMT. KARIYAMMA D/O ERAPPA AGED ABOUT 57 YEARS. BOTH ARE R/OF REDDYHALLI VILLAGE Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 CHALLAKERE TALUK-577522 CHITRADURGA DISTRICT. 3. SMT. SANTHAKKA D/O LATE GIDDAPPA AGED ABOUT 62 YEARS. 4. SRI. KARIYANNA S/O KARIYANNA AGED ABOUT 57 YEARS. 5. SRI. A. AJJAPPA S/O KARIYANNA AGED ABOUT 52 YEARS. 6. SRI. RAJA S/O KARIYANNA AGED ABOUT 49 YEARS. 7. SRI. ERAPPA S/O ERANNA AGED ABOUT 52 YEARS. 8. SRI. SIDDAPPA S/O ERANNA AGED ABOUT 52 YEARS. 9. SRI. MURTHY S/O ERANNA AGED ABOUT 47 YEARS. RESPONDENTS NO.3 TO 9 ARE R/AT EREHALLY VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT-577599. …RESPONDENTS (BY SRI. SUDHAKARA D.M. ADV., FOR SRI. P.H. VIRUPAKSHAIAH, ADV., FOR R1 AND R2 V/O/DTD:05.09.2023 NOTICE TO R3 TO R9 ARE D/W) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION IN THE NATURE OF - 3 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 WRIT QUASHING ORDER PASSED BY THE LEARNED II ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN RA.NO.37/2016 ON I.A.NO.II DATED 22.11.2019, PRODUCED AS ANNEXURE-E & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs: "(i) Issue writ of certiorari or any other writ or quashing order or direction, in the nature of writ order passed by the learned II Addl. District and Sessions Judge, Chitradurga in RA.No.37/2016 on IA.No.II dated 22.11.2019, produced as Annexure- E; and (ii) Cost and such other reliefs deems fit to grant under the circumstances of the case in the interest of justice and equity." 2. Sri.Siddappa B.M., learned counsel appearing for the petitioners submits that the respondents filed a suit for relief of partition and separate possession which came to be decreed. Being aggrieved, the petitioners preferred a regular appeal and in the said appeal the petitioners filed an application under Order XLI Rule 27 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking to produce additional evidence which came to be rejected on the incorrect premise that similar application was filed - 4 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 by the petitioners during the trial was rejected and it has been affirmed by this Court. It is submitted that the scope of Order XLI Rule 27 r/w Section 151 of CPC is altogether different which has not been properly appreciated by the Appellate Court. It is further submitted that the Appellate Court while considering the application filed under Order XLI Rule 27 of CPC is required to consider whether the trial Court has refused to admit the evidence, which ought to have been admitted and no such exercise has been carried out by the Appellate Court. Hence, the impugned order would not sustain. It is also submitted that this Court and the Hon'ble Supreme Court in the catena of cases held that the application for additional evidence filed in the appeal shall be normally considered along with the main matter. However, the Appellate Court did not follow the settled position of law and rejected the application under the impugned order. In support of his contention he placed reliance on the decision of the Hon'ble Supreme Court in - 5 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 the case of Union of India v. Ibrahim Uudin and Another1. Hence, he seeks to allow the petition. 3. Per contra, Sri.Sudhakara D.M., learned counsel appearing on behalf of Sri.P.H.Virupakshaiah, learned counsel for the respondents supports the impugned order of the Appellate Court and submits that the petitioners have made an attempt to produce an additional evidence by way of an application in a pending suit which came to be rejected by the trial Court on the ground that the agreement of sale which the petitioners intend to produce is with a deficit stamp duty and unregistered and the said order of the trial Court has been confirmed by this Court. Hence, similar application filed by the petitioners in the appeal is not maintainable. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioners, the learned counsel for the 1 (2012) 8 SCC 148 - 6 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 respondents and meticulously perused the material available on record. I have given my anxious consideration on the submissions advanced on both sides. 5. The parties to the proceedings do not dispute that the respondents filed OS.No.6/2013 for relief of partition and separate possession which came to be decreed on 01.06.2016. Being aggrieved, the petitioners filed regular appeal in RA.No.37/2016 which is pending before the II Additional District and Sessions Judge, Chitradurga. In the aforesaid appeal the petitioners filed an application in IA.No.2 under Order XLI Rule 27 r/w Section 151 of CPC seeking permission to lead additional evidence of appellant. The affidavit accompanying the application indicates that the petitioners could not produce the agreement of sale during the trial and when he was cleaning his house, he was able to procure the said agreement of sale in respect of the suit schedule property which he intends to produce. The material on record indicates that the petitioners have made similar attempt in - 7 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 pending suit by filing an application under Order VIII Rule 1A r/w Section 151 of CPC and under Order XVIII Rule 17 r/w Section 151 of CPC, which came to be rejected by the trial Court and the same was challenged before this Court in WP.No.25746/2015 and connected writ petition. This Court on 18.03.2016 dismissed the writ petitions by affirming the order of the trial Court. The order of this Court indicates that this Court has confirmed the order of the trial Court without recording independent finding with regard to the explanation offered by the petitioners for non-production of the evidence before the trial Court. Later, the petitioners filed an application under Order XLI Rule 27 r/w Section 151 of CPC before the Appellate Court which is permissible under the aforesaid rule. Order XLI Rule 27 of CPC provides that the appellant can produce additional evidence in the appellate Court if the trial Court refuses to admit the evidence, which ought to have been admitted. The contention of the petitioners is that the trial Court rejected the application solely on the ground that - 8 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 the agreement of sale intended to be produced suffers from deficit stamp duty and an unregistered instrument. In my considered view, the trial Court ought to have accepted the said document on record, impounded it and directed the petitioners to pay the deficit stamp duty and penalty. Rejection of the application by the trial Court for production of document is contrary to the provisions of the Karnataka Stamp Act, 1957 as the petitioners ought to have made good the stamp duty and penalty and after paying the requisite stamp duty and penalty, the said evidence ought to have been admitted. Without carrying out any such exercise, the trial Court rejected the application solely on the ground that the instrument in question suffers from deficit stamp duty and is an unregistered instrument, which is incorrect. Furthermore, the Appellate Court ought to have examined whether the document which the petitioners intend to produce along with the application IA.No.2 is admissible in the evidence or not and whether rejection of application by the trial - 9 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 Court is correct or not. Without doing so, the Appellate Court has straightway rejected the application solely on the ground that the trial Court under similar circumstances has rejected the application which has been affirmed by this Court. In my considered view, it is an incorrect approach of the Appellate Court and contrary to the scope of Order XLI Rule 27 r/w Section 151 of CPC. The Hon'ble Supreme Court in the case of Union of India referred supra at paragraph Nos.36 to 52 has laid down the law on Order XLI Rule 27 of CPC. Paragraph No.52 of the aforesaid judgment is extracted herein below: "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." - 10 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 6. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court in the aforesaid judgment, I am of the considered view that the Appellate Court is required to reconsider the application filed by the petitioners in IA.No.2 along with the main appeal and pass appropriate orders while considering the appeal of the Petitioners in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the application. 7. For the aforementioned reasons, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The impugned order dated 22.11.2019 on IA.No.2 in RA.No.37/2016 by the learned II Additional District and Sessions Judge, Chitradurga is hereby set aside. The Appellate Court is directed to consider IA.No.2 - 11 - HC-KAR NC: 2025:KHC:26664 W.P. No.2307/2020 along with the merits of the appeal in RA.No.37/2016. iv) No orders as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 35