Due diligence must be established for producing additional evidence in appellate proceedings; the failure to show diligence results in application rejection.

ORDER

VIJAYKUMAR A. PATIL, J.

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 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.

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 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