Permission To Produce Additional Evidence Can Be Granted If Documents Produced Are Relevant, Essential- Karnataka HC

The Karnataka High Court at Kalaburagi Bench comprising Justice SR Krishna Kumar and Justice KS Hemalekha has held that permission to produce additional evidence post litem under Order 41 Rule 27 of the CPC can be allowed if the said documents are relevant, material, and essential for adjudication of the issues in controversy involved in the appeals and for their disposal.

Senior Counsel G Krishnamurthy and Senior Counsel Amit Kumar appeared for the appellants, while Counsel Sanjeev Kumar C Patil appeared for the respondent side.

In this case, the High Court framed three questions and answered them in the following manner:

(i) Whether the application filed by the appellants under Order 41 Rule 27 CPC for permission to produce additional evidence deserves to be allowed?

The Court noted that "the only reason assigned by respondent Nos.1 to 6 to oppose the application is that the documents sought to be produced are highly belated and no purpose is mentioned or established by the appellants to indicate as to how the documents were relevant for disposal of the appeals."

Subsequently, the Court observed that "the said documents are relevant, material and essential for adjudication of the issues in controversy involved in the present appeals and for its disposal. It is no doubt true that the documents sought to be produced are post litem documents, which have come into existence during the pendency of the appeal; nevertheless, so long as the documents are not disputed by respondent Nos.1 to 6 and they relate to the suit schedule properties coupled with the fact that the suit is one for partition and separate possession of the plaintiffs’ alleged share, it cannot be said that the documents are not to be permitted to be produced by way of additional evidence."

Accordingly, the application was allowed.

(ii) Whether the trial Court was justified in concluding that the suit schedule properties were the ancestral joint family properties in the hands of defendant No.1?

In this context, the Court noted that "we are of the view that the trial Court committed an error in coming to the conclusion that the suit schedule properties are the joint family properties by wrongly placing reliance upon the aforesaid remand order of this Court and consequently, even this finding recorded by the trial court deserves to be set aside."

The Court held that the suit schedule properties were the separate and self acquired properties of defendant No. 1 and not his joint family / ancestral properties and that the alienations made by him in favour of defendants 2 to 11 were perfectly legal, valid and proper and that the plaintiffs were not entitled to any share in the said properties.

(iii) Whether the impugned judgment and decree passed by the trial Court warrants interference by the High Court?

The Court observed that the subsequent conduct, documents produce and material on record were sufficient to establish that the impugned judgment and decree passed by the Trial Court was erroneous and contrary to the material on record, thus warranting interference by the High Court.

Accordingly, the Court held that "the impugned judgment and decree passed by the trial court is illegal, unjust, unfair and opposed to the facts and probabilities of the case and the same deserves to be set aside and the suit of the plaintiffs is liable to be dismissed."

Consequently, the appeals were allowed and the judgment passed by the Trial Court was set aside.

Cause Title: Sri Bhimasi Fakirappa Bijjur & Ors v. Nagesh Bhimappa Waddar & Ors.

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