ORAL ORDER

(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The petitioner is before this Court seeking for the following reliefs: a. Issue a writ, direction or order in the nature of certiorari by quashing annexure-h order dated 20.04.2024, on I.A.No.5 passed by the Addl.District and Sessions Judge, Vijayapur, in R.A.No.115/2022.

b. Issue a writ, direction or order in the nature of certiorari by quashing Annexure-J, order dated 20.04.2024 on I.A.No.6, passed by the II Addl.District and Sessions Judge, Vijayapur in R.A.No.115/2022.

c. Issue a writ, direction or order which deem fit under the fact and circumstances of the case.

The petitioner was a defendant in O.S.No.16/2018 filed by the respondents for declaration of title and consequential injunction. The said suit came to be decreed vide judgment dated 22.08.2022, which was challenged by the petitioner in R.A.No.115/2022. In the said appeal, the petitioner had filed an application in I.A.No.V under Order 26 Rule 9 of Code of Civil Procedure to measure the property and certain other actions. Thereafter, another application in I.A.No.VI had been filed under Order 41 Rule 27 of Code of Civil Procedure to produce certified copy of sale deed and mutation entries. Both the applications have been rejected vide order dated 20.04.2024.

Challenging the said rejection order, the petitioner is before this court seeking for the aforesaid reliefs.

Sri Sanjeevkumar C.Patil, learned counsel for the petitioner would submit that there are disputes as regards the measurement of the properties and the location of a well and as such, there would be requirement for the Assistant Director of Land Records to be appointed as a Court Commissioner.

Insofar as the application for production documents, it is submitted that the first appellate court has rejected the application at the interlocutory stage, which ought not to have been done and the same ought to have been considered at the time of final hearing.

Heard Sri Sanjeevkumar C.Patil, learned counsel for the petitioner and Sri.Bapugouda Siddappa, learned counsel for respondents and perused the papers.

A perusal of the impugned order insofar as the application in I.A.No.V filed under Order 26 Rule 9 of Code of Civil Procedure is concerned, it would indicate that a similar application had been filed by the petitioner before the trial Court which came to be rejected as the same was not challenged by the petitioner. The said order having attained finality, the question of the petitioner filing one other application, this time in the first appeal, would not arise. As such, I am in agreement with the order passed by the first appellate Court. I do not find any infirmity in the order passed by the first appellate Court on I.A.No.V. Insofar as I.A.No.VI is concerned, the first appellate Court has disposed the application at the interlocutory stage and posted the matter for arguments as held by this Court in the case of John

C.Thomas vs. P.M.Chandy reported in 2006 (2) KCCR 814 an application filed for production of additional evidence in Order 41 Rule 27 of Code of Civil Procedure would have to be considered along with the main argument and cannot be rejected at the interlocutory stage. Hence, the order dated 24.04.2024 passed on I.A.No.VI would have to be set aside.

8. As such, I pass the following:

ORDER

i. Writ petition is partly allowed.

ii. The order passed on I.A.No.VI dated 24.04.2024 by the II Additional District and Sessions Judge, Vijayapura_ in R.A.No.115/2022 is set aside.

iii. The first appellate Court is directed to consider I.A.No.VI along with the main appeal. The said application is restored to its file.

Sd/- (SURAJ GOVINDARAJ) JUDGE VNR List No.: 1 SI No.: 42 CT: RBM