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IN THE SUPREME COURT OF INDIA REPORTABLE               CIVIL APPELLATE JURISDICTION

           CIVIL APPEAL NO. 10195 OF 2013 (Arising out of SLP(C) No. 16677 of 2012)

GOVT. OF KARNATAKA AND ANR           Appellants

                VERSUS

K.C.SUBRAMANYA AND ORS              Respondents

O R D E R

Leave granted.  

2. Application for impleadment is allowed.  

3. Having gone through the impugned judgment and  

order dated 26.07.2011 passed by the High Court of  

Karnataka in RFA No. 1765/2005, we have noticed that  

the judgment and decree was passed in favour of the  

respondents by the Trial Court which had also been  

upheld by the High Court.   

4. However,  counsel  for  the  appellants  submitted  

that the appellants have sought permission of the High  

Court at the stage of first appeal seeking liberty to  

adduce additional evidence which is a map of the area  

indicating that the disputed land is a public road and  

in view of Order XLI Rule 27(1) (aa), the appellants  

were entitled to adduce such additional evidence at

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the appellate stage.   

5. However,  we  do  not  feel  impressed  with  this  

argument and deem it fit to reject it in view of Order  

XLI Rule 27(1) (aa) which clearly states as follows:

(a) .........

(aa) the  party  seeking  to  produce  additional  evidence,  establishes  that  notwithstanding  the  exercise  of  due  diligence, such evidence was not within his  knowledge or could not, after the exercise of  due diligence, be produced by him at the time  when the decree appealed against was passed,  or

(b) ..........

6. On  perusal  of  this  provision,  it  is  

unambiguously clear that the party can seek liberty to  

produce additional evidence at the appellate stage,  

but the same can be permitted only if the evidence  

sought to be produced could not be produced at the  

stage of trial in spite of exercise of due diligence  

and that the evidence could not be produced as it was  

not  within  his  knowledge  and  hence  was  fit  to  be  

produced by the appellant before the appellate forum.

7. It  is  thus  clear  that  there  are  conditions  

precedent before allowing a party to adduce additional  

evidence at the stage of appeal,  which specificcally

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incorporates conditions to the effect that the party  

in  spite  of  due  diligence  could  not  produce  the  

evidence and the same cannot be allowed to be done at  

his leisure or sweet will.

8. In  the  instant  matter,  the  appellants  are  a  

public authority and has sought to produce a road map  

which,  it  is  unbelievable,  was  not  within  the  

knowledge of the appellants indicating a road to the  

disputed  land.   Therefore,  the  rejection  of  the  

application of the appellants to rely on the said map  

has rightly not been entertained at the stage of first  

appeal. The impugned order thus do not suffer from  

legal infirmity so as to interfere with the same.  

9. However,  we  deem  it  appropriate  to  observe  

further  that  the  appellants  are  Government  of  

Karnataka and, therefore, if it is of the view that  

the land in question requires construction of a public  

road, no one can stop it from acquiring the land in  

question.   In  fact,  the  appellants  appear  to  have  

taken steps earlier for acquisition of the land in  

question but what prevailed upon the appellants to  

drop the acquisition proceeding is not quite clear.   

10. The present appeal arises out of a simple suit

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of declaration and confirmation of possession which  

was  decreed  in  favour  of  the  respondents  and  was  

upheld by the High Court.  The decree having been  

passed after contest, cannot be interfered with unless  

the  counsel  could  prove  perversity  in  the  finding  

recorded  concurrently  by  the  courts  below.   It  is  

clear that the appellants have miserably failed to do  

so and, therefore, it cannot bank upon the equity and  

good conscience of this Court beseeching interference  

with  a  contested  decree  passed  in  favour  of  the  

respondents.   

11. It is no doubt true that the courts at times can  

exercise its due diligence for taking the relevant  

aspects of the matter while exercising its discretion  

for application of equity and good conscience.   But,  

insofar  as  the  appellants  in  this  appeal  are  

concerned,  that  also  is  lacking  as  we  fail  to  

comprehend  as  to  why  the  appellants  dropped  the  

acquisition proceeding if it thought that the land in  

question was so essential and viable for using it as a  

public road.  

12. However, in spite of the aforesaid observations,  

the  appellants  obviously  would  be  free  to  take  

recourse to any provision in accordance with law to

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declare the land in question as a public land of the  

appellant but insofar as this appeal is concerned, we  

cannot entertain it as we are not convinced that it is  

a fit case where we should interfere with the decree  

based on concurrent findings of fact recorded by the  

courts below.  

13. The appeal, therefore, is dismissed.  

........................J. (GYAN SUDHA MISRA)

........................J. (PINAKI CHANDRA GHOSE)

NEW DELHI SEPTEMBER 16, 2013