- 1 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.245 OF 2025 (PAR) BETWEEN: 1. SMT. G.N. LAKSHMI D/O NAGARAJ @ NAGARAJAPPA AGED ABOUT 33 YEARS R/AT GERUPURA VILLAGE KASABA HOBLI MALUR TALUK-563 130. …APPELLANT (BY SRI. RAMAIAH GOWDA L.M., ADVOCATE) AND: 1. SRI. NAGARAJ @ NAGARAJAPPA S/O LATE PUTTAPPA AGED ABOUT 57 YEARS R/AT HAROHALLI VILALGE KASABA HOBLI, MALUR TALUK-563 130. …RESPONDENT (RESPONDENT SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.10.2024 PASSED IN R.A.NO.18/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.02.2020 PASSED IN O.S.NO.455/2015 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALUR. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The records disclose that suit is filed for the relief of partition and separate possession claiming half share in the suit schedule property. It is the specific case of the plaintiff that she is the daughter of defendant and also contend that herself and defendant constitute Hindu Undivided Joint Family. It is also contented that suit schedule property is the joint family property of herself and defendant. 4. The defendant appeared and filed the written statement denying the relationship with the plaintiff and when case was set down for evidence, the plaintiff examined herself as P.W.1 and got marked the documents as Exs.P1 to P4 and though time was taken from 2018 to 2020, the plaintiff did not appear before the Trial Court either for further chief - 3 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 examination or for tendering cross-examination. The records of the Trial Court also disclose that P.W.1 was partly examined and though sufficient opportunity was given to lead further evidence and when the plaintiff did not appear before the Trial Court, the Trial Court deemed as no further chief and posted the case for cross-examination of P.W.1 and P.W.1 also not subjected herself for cross-examination. When the case was posted for judgment, at that juncture, an application is filed for advancing the case and for further opportunity. The Trial Court dismissed the said application and admittedly, the suit is also dismissed. 5. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.18/2021. Learned counsel would vehemently contend that an application is filed before the First Appellate Court under Order 41 Rule 27 read with Section 151 of CPC along with medical records as well as other documents. The First Appellate Court taking note of the material on record framed the point for consideration and comes to the conclusion that on careful scrutiny of entire order sheet of Trial Court - 4 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 wherein P.W.1 has examined in chief on 21.08.2018. Thereafter, matter was posted for further chief of P.W.1. Later case was called on 23.09.2018, 20.11.2018, 07.01.2019, 12.03.2018, 04.06.2019, 12.07.2019, 06.09.2019 for further chief examination and cross-examination of P.W.1 and also taken note of inspite of sufficient opportunity given for more than a dozen time not subjected for cross-examination or further examined. In paragraph No.20, the First Appellate Court also taken note of the fact that suit is filed for the relief of partition by the daughter against the father. On the other hand, defendant has totally denied the relationship of plaintiff with the defendant as a daughter. Under these circumstances, burden lies on the plaintiff to prove the case. But, the plaintiff did not show any valid grounds for her absence before the Trial Court, as observed by the Trial Court in its judgment and relying the provisions of Order 17 Rule 2 of CPC and judgment of Hon’ble Supreme Court and High Court of Karnataka, the view taken by the Trial Court is proper. The counsel also would vehemently contend that when opportunity is given and P.W.1 has not tendered for cross-examination and not led any evidence, comes to the conclusion that no ground is made out - 5 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 to consider the appeal. Being aggrieved by the concurrent finding, this second appeal is filed before this Court. 6. The main contention of learned counsel for the appellant is that when an application is filed under Order 41 Rule 27 read with Section 151 of CPC, the First Appellate Court ought to have framed the point for consideration and the same has not been done and even not looked into the documents which have been produced i.e., the medical records as well as other documents in order to prove the relationship between the parties. Having perused the order sheet of the First Appellate Court and also the judgment and decree passed in R.A.No.18/2021 and when the appeal was filed along with the application and documents i.e., SSLC marks card, PUC marks card, Aadhaar card, election ID card and also the medical records for having taken treatment in 2020, the same has not been considered. 7. Having heard learned counsel for the appellant and also when the application is filed under Order 41 Rule 27 read with Section 151 of CPC and when the appeal is filed along with application and documents, the First Appellate Court ought to - 6 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 have considered the application filed under Order 41 Rule 27 read with Section 151 of CPC whether the appellant has made out the ground to consider the same both in respect of non- appearance of the appellant before the Trial Court and also whether the documents of the appellant are the necessary document to decide the appeal and whether the same is necessary to decide the germane issues involved between the parties and also to prove the factum of relationship between the parties. The First Appellate Court ought to have given an opportunity and no point for consideration is also framed in the appeal as regards Order 41 Rule 27 read with Section 151 CPC and appeal is disposed of without looking into the application. With regard to non-appearance before the Trial Court also to take note whether genuine reasons are assigned for non- appearance and also whether the documents which have been produced as additional documents pertains to the claim made by the appellant. When such being the case, I am of opinion that First Appellate Court committed an error in considering the application filed under Order 41 Rule 27 read with Section 151 of CPC without framing a point for consideration and instead only carried away with the non-appearance of the appellant - 7 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 before the Trial Court and ought to have considered the medical records produced before the Trial Court and the same has not been considered. Hence, matter requires reconsideration. 8. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is allowed. (ii) The impugned judgment of the First Appellate Court is set aside and matter is remitted back to the First Appellate Court to consider the application filed under Order 41 Rule 27 read with Section 151 of CPC and dispose of the appeal on merits and in case, if the First Appellate Court comes to the conclusion that matter requires to be considered in view of production of documents, the First Appellate Court itself to record the evidence and give a finding on the documents as well as with regard to the claim of the appellant instead of remanding the matter to the Trial Court for consideration. (iii) The appellant and the learned counsel for the appellant is directed to appear before the First Appellate Court on 05.01.2026. The First Appellate Court is directed to issue notice to the respondent - 8 - HC-KAR NC: 2025:KHC:51057 RSA No. 245 of 2025 since the respondent did not choose to appear in the second appeal and immediately after the respondent appears before the First Appellate Court, dispose of the appeal within a period of six months by recording the evidence, if need arises and consider the material on record afresh. (iv) The appellant is directed to pay a cost of Rs.10,000/- before the First Appellate Court and on deposit itself, the First Appellate Court to take up the matter and the said cost shall vest with the State. (v) The Registry is directed to send the records to the First Appellate Court, to enable the Court to take up the matter without fail on 05.01.2026. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 63