- 1 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR REGULAR SECOND APPEAL NO.1594 OF 2007 (INJ) BETWEEN: SMT. AKBARI BEGUM D/O AMEER SAHEB AGED ABOUT 55 YEARS W/O NASRULLA SHARIEF R/O ASUR MOHALLA, K.R. PURAM ROAD, SHIMOGA – 577 202 …APPELLANT (BY SRI. G.S. BALAGANGADHAR, ADVOCATE) AND: 1. SRI MALLANNA @ MALLAPPA S/O PUTTAPPA AGED ABOUT 62 YEARS R/O RAVIVARMA STREET SHIMOGA – 577 202 DEAD BY LRs. 1(a) SMT. SHANKARAMMA W/O LATE SRI. MALLANNA @ MALLAPPA, AGED ABOUT 60 YEARS 1(b) SRI. GIRISH, S/O LATE SRI. MALLANNA @ MALLAPPA AGED ABOUT 35 YEARS RESPONDENT NOS.1(a) AND 1(b) ARE RESIDING AT NO.65, SEEGIHATTI, RAVIVARMA STREET, SHIVAMOGGA TALUK – 577 202 SHIVAMOGGA DISTRICT. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 2. SMT. SIVAPUTRAMMA @ LAKSHMAMMA W/0 LATE SOMANA AGED ABOUT 45 YEARS R/O RAVIVARMA STREET SHIMOGA – 577 202 3. SMT NAGARATHNAMMA W/O RAVI AGED ABOUT 40 YEARS R/O DODDA KERI SHIKARIPURA 4. SMT. SHARADA W/O CHIKKAPPA AGED ABOUT 38 YEARS R/O SHIKARIPURA SHIMOGA DIST. 5. SMT. NANDINI W/O BABU AGED ABOUT 33 YEARS R/O NAGAPPA KERI GANDHI BAZAR SHIMOGA 6. SRI AJAY S/O SOMANNA AGED ABOUT 17 YEARS, R/O RAVIVARMA STREET, SHIMOGA 7. MS. ASHWINI D/O LATE SOMANNA AGED ABOUT 16 YEARS, R/O RAVIVARMA STREET, SHIMOGA RESPONDENT NOS.6 AND 7 ARE REPTD. BY MOTHER AND NATURAL GUARDIAN, SMT. SIVAPUTRAMMA @ LAKSHMAMMA W/O LATE SOMANA AGED ABOUT 45 YEARS R/O RAVIVARMA STREET, SHIMOGA - 3 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 8. SRI. MANJANNA S/O PUTTAPPA AGED ABOUT 50 YEARS 9. SRI. PARAMESHWARAPPA S/O PUTTAPPA AGED ABOUT 49 YEARS 10. SRI. CHANDRAPPA S/O PUTTAPPA AGED ABOUT 49 YEARS 11. SRI. RAMESH S/O PUTTAPPA AGED ABOUT 46 YEARS RESPONDENTS NO.8 TO 11 ARE R/O RAVIVARMA STREET SHIMOGA – 577 202 12. SRI. H. MANJUNATHA S/O LATE HANUMANTHANNA AGED ABOUT 35 YEARS, 13. SRI. M. SOMASHEKHAR S/O LATE HANUMANTHANNA AGED ABOUT 33 YEARS, 14. SRI H. UMESH S/O LATE HANUMANTHANNA AGED ABOUT 25 YEARS, RESPONDENTS NO.12 TO 14 ARE R/O MATRUSHREE STAR NETWORK, KALIDASA NAGAR, TARIKERE, CHIKKAMAGALURU DISTRICT – 577 223 …RESPONDENTS (BY SRI. C.M. DESAI, ADVOCATE FOR R2 TO R5 & R7 TO R11; SRI. GURURAJ R., ADVOCATE FOR R1 (A & B); R6, R12, R13, R14 ARE SERVED; PROPOSED R1(D), PROPOSED R1(E), PROPOSED R1(C) ARE SERVED) - 4 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 17.03.2007 PASSED IN R.A.NO.99/2006 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) & CJM, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.06.2006 PASSED IN OS.NO.86/1993 ON THE FILE OF THE I ADDL.CIVIL JUDGE (JR.DN.), SHIMOGA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by respondent No.1 in R.A.No.99/2006 is directed against the impugned judgment and decree dated 17.03.2007, whereby the said appeal preferred by respondent Nos.1 to 7 was allowed by the Principal Civil Judge (Sr.Dn.) & CJM, Shimoga (for short “the First Appellate Court”) 2. Briefly stated the facts in nutshell are as under: A perusal of the material on record will indicate that respondent Nos.1 to 7 - plaintiffs instituted a suit in O.S.No.86/1993 against the appellant-defendant No.1 and other defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit having been contested by the appellant / defendant No.1, the same came to be dismissed by the Trial Court vide judgment and decree dated - 5 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 28.06.2006. Aggrieved by the said judgment and decree passed in O.S No.86/1993 by the Trial Court, respondent Nos.1 to 7 filed an appeal in R.A.No.99/2006 before the First Appellate Court, in the said appeal, respondent Nos.1 to 7 filed two applications viz. I.A.Nos.3 and 4 under Order XLI Rule 27 CPC and Order VII Rule 14 CPC for permission to produce Additional documents by condoning the delay in production of documents. The said application having been opposed by the appellant herein, the First Appellate Court proceeded to pass the impugned judgment and decree allowing both the applications, I.A.Nos.3 and 4 filed by respondent Nos.1 to 7 and thereby directing the said additional evidence to be received in the appeal and consequently, setting aside the judgment and decree passed by the Trial Court and accordingly decreeing the suit filed by the plaintiffs against the defendants. Aggrieved by the impugned judgment and decree passed by the First Appellate Court in R.A.No.99/2006, the appellant-defendant No.1 is before this Court by way of the present appeal. 3. On 26.10.2010, the present appeal was admitted to consider the following substantial question of law as under: - 6 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 “This appeal is admitted to consider the following substantial question of law; “Whether the Appellate Court was justified in recording a finding, without the additional documents being marked and proved in accordance with law?” Learned counsel for the appellant submits that the grant pleaded by the plaintiffs before the Land Tribunal is rejected and there is a false representation. He wants to file an application. In view of the submission made, learned counsel for the appellant is at liberty to serve the copy to the other side and file the same in the Court. Interim stay is granted and it shall be in operation till the disposal of the suit.” 4. Learned counsel for the appellant submits that having come to the conclusion that the additional evidence sought to be produced by the respondents-plaintiffs was relevant and necessary and has to be permitted to be produced by the plaintiffs, it was incumbent upon the First Appellate Court to follow the procedure prescribed under Order XLI Rule 28 CPC, inasmuch as the First Appellate Court ought to have either remitted the matter back to the Trial Court for reconsideration afresh, in accordance with law, by permitting the said documents to be tendered, marked and admitted in evidence and granting liberty in favour of both parties to - 7 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 adduce oral evidence in relation to the said additional evidence or alternatively receive or record evidence / oral evidence itself and mark the said documents in evidence before the First Appellate Court itself. It is submitted that the First Appellate Court has not complied with the mandatory procedure prescribed under Order XLI Rule 28 CPC. and has neither remitted the matter back to the Trial Court nor marked the said additional documents in evidence or permitted the appellant to adduce oral evidence, which is sufficient to vitiate the impugned judgment and decree, especially when the First Appellate Court has placed reliance upon the said additional evidence and set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiffs against the defendants. It is therefore submitted that the impugned judgment and decree passed by the First Appellate Court deserves to be set aside. It is also submitted that in the present appeal also, the appellant has filed an application I.A.No.1/2012 for permission to adduce additional evidence. 5. Per contra, learned counsel for the respondents would support the impugned judgment and decree and submits that there - 8 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 is no merit in the appeal and that the same is liable to be dismissed. 6. As stated supra, the following substantial question of law arises for consideration in the present appeal: “Whether the Appellate Court was justified in recording a finding, without the additional documents being marked and proved in accordance with law?” 7. Before averting to the rivals are contentions, it would be necessary to extract Rule XLI Rule 28 CPC, which reads as under: “28. Mode of taking additional evidence.—Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.” 8. As rightly contented by the learned counsel for the petitioner, upon an application for additional evidence being allowed, it is incumbent upon the First Appellate Court to either remit the matter back to the Trial Court for reconsideration afresh by permitting parties to adduce oral and documentary evidence or in the alternative, receive the said documents in evidence and mark - 9 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 the same as exhibits in evidence and accordingly, permit oral evidence to be recorded before the First Appellate Court itself and thereafter, receive the said documents and place reliance upon the said documents for the purpose of rendering judgment in the appeal. 9. In the instant case, a perusal of the impugned judgment and decree of the First Appellate Court will indicate that after answering point No.1 in affirmative in favour of the plaintiff and by allowing I.A.Nos.3 and 4 , thereby permitting the plaintiffs to adduce additional evidence, the First Appellate Court has neither marked the said documents in evidence, nor permitted evidence to be recorded on the said documents and has also not remitted the matter back to the Trial Court. Instead, the Trial Court simultaneously proceeded to allow the application and received the documents on record without marking and without permitting oral evidence, the First Appellate Court has straight away proceeded to place reliance upon the said documents and set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiff against the defendants, which is clearly contrary to the well settled principles of law governing Order XLI Rule 28 CPC. - 10 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 10. Under these circumstances, I am of the considered opinion that the First Appellate Court clearly fell in error in disposing of the appeal, by setting aside the judgment and decree of the Trial Court and decreeing the suit in favour of the plaintiffs by following a procedure, which is patently illegal and the impugned judgment and decree passed by the Trial Court deserves to be set aside. 11. Accordingly, the substantial question of law formulated above stands answered in favour of the appellant by setting aside the judgment and decree passed by the First Appellate Court. 12. The next point that arises for consideration is the procedure to be adopted by this Court for the purpose of disposal of the present appeal. As stated supra, in addition to applications – I.A.Nos.3 and 4 filed by the plaintiff, which were allowed by the First Appellate Court, the defendant No.1, who is appellant in the present appeal has also filed an application I.A.No.1/2012 under Order XLI Rule 27 CPC for permission to adduce additional evidence. Under these circumstances, having regard to the fact that no oral evidence has been adduced by both parties in relation - 11 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 to the documents produced by the plaintiff along with I.A.Nos.3 and 4 coupled with the fact that the oral evidence would also be required to be adduced by the parties in relation to the documents produced by the appellant herein along with I.A.No.1/2012, though several contentions have been urged by both sides, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to set aside and to exercise my powers under Section 107 r/w. Order XLI Rule 23A and Order XLI Rule 33 CPC and set aside the judgment and decree passed by the First Appellate Court as well as the Trial Court and remit the matter back to the Trial Court for reconsideration afresh in accordance with law by leaving open all contentions. 13. In the result, I pass the following: ORDER (i) The appeal is hereby allowed. (ii) The impugned judgment and decree dated 17.03.2007 passed in R.A.No.99/2006 by the First Appellate Court and the impugned judgment and decree dated 28.06.2006 passed in O.S.No.86/1993 by the Trial Court are hereby set aside. - 12 - HC-KAR NC: 2026:KHC:21250 RSA No. 1594 of 2007 (iii) I.A.No.1/2012 is hereby allowed. (iv) Registry of this Court is directed to transmit I.A.No.1/2012 filed by the appellant in the present appeal as well as I.A.Nos.3 and 4 filed in R.A.No.99/2006 along with accompanying documents to the Trial Court for reconsideration afresh, in accordance with law. (v) Appellant and respondents shall appear before the Trial Court on 03.06.2026. (vi) The Trial Court is directed to dispose of the suit as expeditiously as possible and preferable within a period of three months from 03.06.2026. (vii) Liberty is reserved in favour of both parties to adduce oral and documentary evidence, which shall be considered by the Trial Court, in accordance with law. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 3 Sl No.: 10