- 1 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 28TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 119511 OF 2020 (GM-CPC) BETWEEN: MAHAMMADASAB SAIPANASAB NADAF, AGE: 52 YEARS, OCC: AGRIL. & SERVICE, R/O. TUNGAL VILLAGE, NOW AT VILLAGE MUNDAGANUR, TALUK: BILAGI-587116, DIST: BAGALKOTE. …PETITIONER (BY SRI. B. S. KAMATE, ADVOCATE) AND: SAIPANASAB HUSSAINSAB NADAF, SINCE DECEASED BY HIS LRS, SMT. BUMA W/O. SAIPANASAB NADAF, SINCE DECEASED BY HIS LRS, 1. SMT. SHAJADABI W/O. RAJESAB NADAF, AGE: 33 YEARS, OCC: AGRIL, R/O: YABARATTI, TALUK: RAIBAG-591317, DIST: BELAGAVI. 2. SRI. CHANDASAB S/O. SAIPANASAB NADAF, AGE: 61 YEARS, OCC: AGRIL., R/O. TUNGAL VILLAGE, TALUK: JAMKHANDI-587301, DIST: BAGALKOT. 3. SRI. NABISAB S/O. SAIPANASAB NADAF, AGE: 55 YEARS, OCC: AGRICULTURE, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 R/O: VILLAGE TUNGAL, TALUK: JAMKHANDI-587301, DIST: BAGALKOT. 4. SRI. DASTAGIRASAB S/O. SAIPANASAB NADAF, AGE: 53 YEARS, OCC: AGRIL., R/O. VILLAGE TUNGAL, TALUK: JAMKHANDI-587301, DIST: BAGALKOT. 5. SRI. ABDULSAB S/O. SAIPANASAB NADAF, AGE: 46 YEARS, OCC: AGRIL., R/O. VILLAGE TUNGAL, TALUK: JAMKHANDI-587301, DIST: BAGALKOT. 6. THE PRESIDENT, PKPS BANK LTD., VILLAGE TUNGAL, TALUK: JAMKHANDI-587301, DIST: BAGALKOT. …RESPONDENTS (BY SRI. M. C. HUKKERI, ADV. FOR R2, R3 AND R5; NOTICE TO R1, R4 AND R6 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 CONSTITUTION OF INDIA, PRAYING TO WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION, QUASHING THE IMPUGNED ORDER DATED 05.12.2019 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI ON I.A.NO.II IN RA.NO.75/2015 PRODUCED AT ANNEXURE-E AND PASS AN ORDER ALLOWING THE APPLICATION I.A.NO.II FILED BY THE PETITIONER/APPELLANT UNDER ORDER 41 RULE 27(AA)(B) R/W.SEC.151 OF CPC IN R.A.NO.75/2015 PENDING ON THE FILED OF I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT VIDE ANNEXURE-B AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking the following reliefs: A) a writ in the nature of certiorari or any other writ or order or direction, quashing the impugned Order dated 05.12.2019 passed by the I Addl. District and Sessions Judge, Bagalkot to sit at Jamkhandi on I.A.No.II in RA.No.75/2015 produced at Annexure-E and. b) To pass an order allowing the Application I.A.No.II filed by the Petitioner/Appellant under order 41 Rule 27(aa)(b) R/w. Sec.151 of CPC in R.A.No.75/2015 pending on the filed of I Addl. District and Sessions Judge, Bagalkot vide Annexure-B. C) Such other writ or orders or direction may deem fit under the facts and circumstances of the case, be passed in the interest of justice. 2. Sri B.S.Kamate, learned counsel for the petitioner submits that the petitioner has filed a suit for partition and separate possession with regard to the different properties. The trial Court partly decreed the suit by allowing partition to some of the properties and dismissed the suit for certain properties. It is submitted that being aggrieved, the petitioner filed Regular Appeal against the dismissal of the suit with regard to certain properties. It is further submitted that in the pending appeal, the - 4 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 petitioner filed an application for production of additional evidence/document i.e. registered gift deed dated 03.10.2013 executed by father of the petitioner with regard to Sl.No.4 of the suit schedule ‘A’ property and Sl.No.6 of suit ‘B’ property. It is also submitted that the Appellate Court without understanding that the said document/evidence is required to adjudicate the dispute between the parties and pronounce the judgment on the issues involved in the suit has rejected the same. It is contended that the Appellate Court only on the ground that there was no due diligence has proceeded to reject the application, which is required to be reconsidered in the present petition. It is further contended that the trial Court while partly decreeing the suit has clearly recorded the finding that the father of the petitioner is the owner of the properties and such being the finding, he has gifted two properties in favour of the petitioner under the registered gift deed dated 03.10.2013 and based on such a gift deed, the shares are required to be changed in the appeal. However, the Appellate Court without appreciating any of the aspects solely on the ground that there is no due diligence has rejected the application. Hence, he seeks to allow the petition by setting aside the impugned order. - 5 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 3. Per contra, Sri M.C.Hukkeri, learned counsel for the respondents No.2, 3 and 5 supports the impugned order of the trial Court and submits that the petitioner was very well aware about the registered gift deed, if any during the pendency of the said suit and he has kept quiet till dismissal of the suit. It is only after the appeal being filed, was an application made to produce the said gift deed, which would prejudice the interest of the defendants in the suit and the Appellate Court has rightly recorded a detailed finding with regard there being no due diligence which does not call for any interference. Hence, he seeks to dismiss the petition. 4. I have heard arguments of Sri B.S.Kamate, learned counsel for the petitioner, Sri M.C.Hukkeri, learned counsel for respondents No.2, 3 and 5 and meticulously perused the material available on record. 5. The petitioner filed O.S.No.167/2005 seeking relief of partition against other family members. The said suit came to be partly decreed on 31.08.2015 partitioning the properties in respect of Sl.No.1 to 4 in ‘A’ schedule properties and Sl.No.6 in ‘B’ schedule property. The plaintiff filed R.A.No.75/2015 against - 6 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 the denial of the shares in other properties. In the said appeal, the petitioner filed an application under Order 41 Rule 27 of the Code of Civil Procedure (‘CPC’, for short) praying to permit to produce the document as per the list of documents. The said application was accompanied by an affidavit. The affidavit at Para 5 indicates that the reason assigned for non-production of the document now intended to be produced is that the said document was not produced during trial due to oversight and it is necessary to produce the same. It is further averred that the other side also has knowledge about the said document. Hence, it is not a surprise to other side and if the document is produced, it would help the Appellate Court to decide the issue involved in the suit and pronounce the judgment on it. The respondents opposed the said application. The trial Court under the impugned order rejected the said application on the ground that there is no due diligence on the part of the appellant. 6. The plain reading of Order 41 Rule 27 of CPC provides for production of additional evidence in the Appellate Court. Rule 27 makes it very clear that a party seeking to produce additional evidence must establish that notwithstanding - 7 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 the exercise of due diligence such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed. In the case on hand, the registered gift deed dated 03.10.2013 was very much within the knowledge and possession of appellant during the course of trial. The said suit came to be decreed by the trial Court on 31.08.2015 and nothing had prevented the petitioner to produce the said document during the course of his evidence or in the course of trial. The cause shown in the application with regard to the due diligence that the petitioner had not produced the gift deed due to oversight cannot be accepted. Order 41 Rule 27 (1)(b) of CPC indicates that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause, then the Appellate Court may allow such evidence or the document to be produced or the witness to be examined. The contention of the petitioner is that clause (a) and (b) of Rule 27 is required to be read harmoniously so that the trial Court can pronounce the judgment with regard to the shares of the parties in the suit. In my considered view, such exercise can be allowed in a given case but not in the case - 8 - HC-KAR NC: 2025:KHC-D:10854 WP No. 119511 of 2020 on hand. In the case on hand, the petitioner was in possession and having knowledge with regard to the execution of gift deed by his father on 03.10.2013 and he has kept quiet for a considerable amount of time. It is only after the disposal of the original suit, an attempt is made to produce the said document with a malafide intention to affect the rights of others. Such an exercise cannot be allowed to be undertaken under Order 41 Rule 27 of CPC. The Appellate Court considering the various aspects has clearly recorded the finding that the appellant has failed to show due diligence and rejected the application. I do not find any error or perversity in the impugned order calling for interference in the present petition. 7. For the aforementioned reasons, I am of the considered view that the writ petition is devoid of merit and the same is accordingly rejected. Sd/- (VIJAYKUMAR A.PATIL) JUDGE CLK /CT-AN List No.: 1 Sl No.: 9