The main legal point established in the judgment is the requirement for the appellate court to consider applications filed under Order 41 Rule 27 and Order 26 Rule 9 of CPC and the relevance of the documents produced.

JUDGMENT/ORDER

1. The above Second Appeal is filed by the Defendant to set aside the Judgment and Decree dtd. 8/12/2017 passed in R.A. No.76/2014 by the Principal Senior Civil Judge, Kalaburagi and the Judgment and Decree dtd. 31/10/2014 passed in O.S. No.327/2009 by the V Addl. Civil Judge and JMFC., Gulbarga.

2. The Parties are referred to as per their ranking before the Trial Court for the sake of convenience.

3. The Plaintiff instituted a suit in O.S. No.327/2009 against the Defendant for mandatory injunction or in the alternative for possession. It is the case of the Plaintiff that he is the absolute owner and landlord in respect of an open space bearing CTS No.1432 measuring 41593.4 sq.meters and that his name is entered in the CTS record; that in the said Jatra Maidan, the plaintiff's father constructed over head water tank and there is electricity and water connection to the said tank; that the Jatra of Sri Sharanabasaveshwara Sadu Maharaj held in the month of March or April every year and the Defendant had taken the suit premises as a licencee for a period of three months on a licence fee of Rs.12,000.00 and that the Defendant paid Rs.8,000.00 on 14/4/2008 out of the said Rs.12,000.00; that the licence expired on 30/6/2008. However, the Defendant has not vacated the suit premises after expiry of the licence period. Hence, the Plaintiff issued a legal notice to the defendant on 22/10/2008 revoking the licence. Since the Defendant not vacated the suit premises, the Plaintiff filed the said suit.

4. The Defendant entered appearance in the said suit and filed his Written Statement inter alia, denying the case of the Plaintiff and contending that the suit premises is not an open space and that a shed is constructed in the said place; that the Plaintiff is not the owner of the suit premises and has no right to evict the Defendant; that the Defendant has not paid any money to the Plaintiff; it is denied that the licence period has expired on 30/6/2008; that the Defendant has duly replied to the legal notice vide his reply dated 01.012.2008, that the defendant and his family members are in possession of the suit property for more than 50 years on their own right. Hence, he seeks for dismissal of the suit.

5. The Trial Court upon the pleadings of the parties, framed seven issues. The power of attorney holder of the Plaintiff was examined as PW.1 and witnesses PWs.2 to 5 were examined. Exs.P1 to P39 were marked as exhibits. The Defendant examined himself as DW.1 and DWs.2 to 7 were examined as witnesses. Exs.D1 to D84 were marked as Exhibits. A Court witness was examined as CW.1 and Exs.C1 to C8 were marked as Exhibits.

6. The Trial Court vide its Judgment and Decree dtd. 31/10/2014 partly decreed the suit filed by the Plaintiff and directed the Defendant to vacate the suit property and deliver possession of the plaintiff within two months and further directed to pay Rs.34,000.00 to the Plaintiff for use and occupation of the suit premises. Being aggrieved, the Defendant preferred Regular Appeal No.76/2014. The Plaintiff entered appearance in the said Regular Appeal and contested the same. The First Appellate Court vide its judgment dtd. 8/12/2017, dismissed the said Appeal and confirmed the Judgment and Decree passed by the Trial Court in O.S. No.327/2009. Being aggrieved, the present Second Appeal is filed.

7. This Court vide order date 12/1/2023 has framed the following substantial question of law:

"Whether the judgment and decree passed by the first appellate Court is liable to be set aside and the appeal can be remanded back to the first appellate Court only on the ground that not passing any order either allowing or rejecting the applications filed by the appellant under Order 41 Rule 27 of CPC and under Order 26 Rule 9 of CPC?"

8. It is contended by the learned counsel for the Appellant/defendant that;

a) During pendency of the Appeal in R.A. No.76/2014 before the First Appellate Court, the defendant had filed two applica