IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD

Dated this the $14^th$ day of December 2011

Before

THE HON'BLE MR.JUSTICE H.N.NAGAMOHAN DAS

RSA No. 2452/2007

BETWEEN:

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SMT.PUSHPAVATI W/O MURALIDHAR JADHAV AGED ABOUT 34 YEARS REPRESENTED BY HER POWER OF ATTORNEY HOLDER SRI MURLIDHAR R/O SIDDARAMESHWAR NAGAR NEAR S.T.DEPOT, GADAG.

...Appellant

(By SRI V.P.KULKARNI, ADV.)

$A$ N D :

SRI DEVENDRA S/O GANAPATRAO JADHAV AGED ABOUT 40 YEARS R/O SIDDARAMESHWAR NAGAR NEAR S.T.DEPOT GADAG.

...Respondent

(BY SRI RAMACHANDRA A.NAIK, ADV.)

RSA FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.6.2007 PASSED IN R.A.NO.152/2002 BY THE ADDL.CIVIL JUDGE(SR.DN), GADAG.

This appeal coming on for orders this day, the court delivered the following:

IUDGMENT

This appeal is directed against the judgment and decree dated 23.8.2002 in O.S.No.70/2001 passed by the Prl.Civil Judge (Jr.Dn) at Gadag and confirmed by the judgment and decree dated 25.6.2007 in R.A.No.152/2002 passed by the Civil Judge (Sr.Dn) at Gadag.

$2.$ Appellant contends that she was running STD booth under Phone No.31319 at Jadhav Complex at Gadag. For installation of this STD booth she has spent huge sum of money and she was earning income. The defendant illegally disconnected the telephone connection, took away telephone and other related equipment by taking law into his own hands. Aggrieved by this illegal act of defendant, plaintiff initiated criminal proceedings as well as civil proceedings. Appellant filed O.S.No.70/2001 for

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recovery of damages of Rs.42,960/-. On contest the Trial Court dismissed the suit of appellant. Aggrieved by the judgment of the Trial Court, appellant filed an appeal in R.A.No.152/2002. Before the first Appellate Court, the appellant filed an application under Order 41 Rule 27 CPC seeking production of certain additional documents. The First Appellate Court dismissed the application and also the appeal. Hence this second appeal.

3. The following substantial question of law will arise for consideration in this second appeal:

Whether the first Appellate Court is legally correct in dismissing the application filed by the appellant under Order 41 Rule 27 CPC?

$4.$ It is seen from the record that the Trial Court dismissed the suit of plaintiff mainly on the ground that she failed to prove that STD booth installation was in her name. In the

appeal, the appellant filed an application under Order 41 Rule 26 CPC seeking production of certain documents to show that STD was installed in her name and she has paid the charges. These documents sought to be produced by the appellant are relevant and necessary to resolve the real controversy between the parties. The first Appellate Court committed an illegality in holding that the documents sought to be produced by the appellant will not help her case. Therefore, the impugned order on the application filed under Order 41 Rule 27 CPC filed first Appellate Court is liable to be set-aside. Consequently, the impugned judgment also requires to be set-aside. Accordingly I answer the question of law in negative. For the reasons stated above, the following:

ORDER

• $i)$ Appeal is hereby allowed.
• ii) The impugned judgment and decree of the first Appellate Court is hereby set-aside.

• The application filed by the appellant under Order iii) 41 Rule 27 CPC is hereby allowed.
• The first Appellate Court to proceed with the matter $iv)$ with $\quad\text{in}\quad$ accordance $-law$ following by the requirement under Order 41 Rule 28 CPC and to decide the appeal in accordance with law and as expeditiously as possible and in any event not later than six months from the date of receipt of copy of this judgment.
• Office to refund the court fee as admissible under $v)$ law.

$Sd/$ -JUDGE

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