Thimmegowda Vs. Dyavegowda

Thimmegowda vs Dyavegowda

Disposition Petition allowed Court Karnataka Decided Feb 10, 1989

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Citation: sooperkanoon.com/380251
Court: Karnataka High Court
Judge: Shivashankar Bhat, J.
Decided On: Feb 10, 1989
Case Number: C.R.P. No. 4693 of 1986
Subject: Civil
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

CIVIL PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) - Orders 12 & 19 - Scope & object - Relate to proof of facts by admission or affidavit - Cannot be invoked to lead additional evidence in appeal, since governed by Order 41 Rule 27.;In pending appeal, applications under Order 12 Rules 1 & 5 and O...

Key legal issue: Civil
Outcome / disposition: Petition allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 12, Rules 1 and 5 - Order 19, Rule 1 - Order 41, Rule 27

Parties & Advocates

Appellant / Petitioner

Thimmegowda

Advocate G.S. Visveswara, Adv.

Respondent

Dyavegowda

Advocate P. Vishwanatha Shetty, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 12, Rules 1 and 5 - Order 19, Rule 1 - Order 41, Rule 27
Reported In: ILR1989KAR1942; 1989(2)KarLJ41

Excerpt

civil procedure code, 1908 (central act no. 5 of 1908) - orders 12 & 19 - scope & object - relate to proof of facts by admission or affidavit - cannot be invoked to lead additional evidence in appeal, since governed by order 41 rule 27.;in pending appeal, applications under order 12 rules 1 & 5 and order 19 rule 1 being allowed in part; on the contention that it was an attempt prove certain facts in appeal in circumvention of order 41 rule 27:;orders 12 & 19 entirely relate to proof of facts, either by admission or by affidavit. the object behind order 12 is to do away with the necessity of proving facts that are admitted, while order 19 provides for mode of proving facts, under certain limited circumstances.;the procedure to lead evidence in appeal is statutorily regulated by the provisions of order 41 rule 27 cpc. additional evidence can be produced only in the manner and under circumstances stated in order 41 rule 27. this presumption as to the production of additional evidence in appeal/cannot be circumvented by recourse to order 12 or order 19 directly. - - the procedure is clearly, a procedure to prove facts and therefore partakes the character of leading evidence......mentioned in the sketch etc.2. sri g.s. visweswara, learned counsel for the petitioner, contends that the procedure followed by the lower court is contrary to the provisions order 41 rule 27 cpc, as the attempt of the respondent is to prove certain facts in appeal by recourse to these i.as.3. the learned counsel for the respondent, however, tried to justify the order of the lower court.4. order xii rule 1 cpc governs the admissions of a case by the opposite party, under order 12 rule 2, opposite party may be called upon to admit any document. under rule 4 of order 12, a party may by notice call upon any other party to admit any specific fact or facts mentioned in the notice; rule 5 provides for the form of the notice to admit facts. as per order 19 rule 1, the court may, (subject to the conditions stated therein) order that any particular fact or facts may be proved by affidavit.5. the provisions invoked by the respondents, thus, entirely relate to proof of facts, either by admission or by affidavit. the object behind order 12 is to do away with the necessity of proving facts that are admitted, while order 19 provides for mode of proving facts, under certain limited circumstances. in other words, by filing i.as 3 and 4 in the lower court, the respondent sought to establish certain facts relevant to the point in issue between the parties. the procedure is clearly, a procedure to prove facts and therefore partakes the character of leading evidence. this procedure is invoked in a pending appeal.6. the procedure to lead evidence in appeal is statutorily regulated by the provisions of order 41 rule 27 cpc. additional evidence can be produced only in the manner and under circumstances stated in order 41 rule 27. this presumption as to the production of additional evidence in appeal, cannot be circumvented by recourse to order 12 or order 19 directly. the invoking of orders 12 and 19 was an attempt to circumvent the provisions of order 41 rule 27 cpc.7. consequently,.....

Full Judgment

ORDER

Shivashankar Bhat, J.

1. In an appeal which is pending, the appellant has filed applications under Order 19 Rule 1, as also under Order 12 Rules 1 & 5 with Section 151 CPC seeking a direction to the petitioner as to whether he admits the truth of the boundaries given in respect of certain property of which a sketch was filed in the appeal along with the applications. The Court below allowed the I.As in part and directed the petitioner to admit or deny the correctness of the sketch and the boundaries mentioned in the sketch etc.

2. Sri G.S. Visweswara, learned Counsel for the petitioner, contends that the procedure followed by the lower Court is contrary to the provisions Order 41 Rule 27 CPC, as the attempt of the respondent is to prove certain facts in appeal by recourse to these I.As.

3. The learned Counsel for the respondent, however, tried to justify the order of the lower Court.

4. Order XII Rule 1 CPC governs the admissions of a case by the opposite party, Under Order 12 Rule 2, opposite party may be called upon to admit any document. Under Rule 4 of Order 12, a party may by notice call upon any other party to admit any specific fact or facts mentioned in the notice; Rule 5 provides for the Form of the Notice to admit facts. As per Order 19 Rule 1, the Court may, (subject to the conditions stated therein) order that any particular fact or facts may be proved by affidavit.

5. The provisions invoked by the respondents, thus, entirely relate to proof of facts, either by admission or by affidavit. The object behind Order 12 is to do away with the necessity of proving facts that are admitted, while Order 19 provides for mode of proving facts, under certain limited circumstances. In other words, by filing I.As 3 and 4 in the lower Court, the respondent sought to establish certain facts relevant to the point in issue between the parties. The procedure is clearly, a procedure to prove facts and therefore partakes the character of leading evidence. This procedure is invoked in a pending appeal.

6. The procedure to lead evidence in appeal is statutorily regulated by the provisions of Order 41 Rule 27 CPC. Additional evidence can be produced only in the manner and under circumstances stated in Order 41 Rule 27. This presumption as to the production of additional evidence in appeal, cannot be circumvented by recourse to Order 12 or Order 19 directly. The invoking of Orders 12 and 19 was an attempt to circumvent the provisions of Order 41 Rule 27 CPC.

7. Consequently, this petition is allowed and the order under revision is set aside, but without any order as to costs.

Same Court & Year Karnataka · 1989 Same Parties Thimmegowda vs Dyavegowda Same Subject Civil Same Judge Shivashankar Bhat, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 12, Rules 1 and ...

Civil