Appegowda vs Kempegowda

B. Manohar, J.—Petitioner is the plaintiff in OS No. 155/2003 on the file of the Principal Civil Judge and JMFC, Nelamangala. Being aggrieved by the order dated 23.9.2014 rejecting I.A.8 filed under Section 151 of CPC requesting to reopen the case for production of list of witnesses, I.A. No. 9 filed under Order 18 Rule 17 of CPC requesting to recall PW1 and I.A. No. 10 filed under Order 16 Rules 1 and 2 of CPC requesting to condone the delay in production of list of witnesses and permit to examine them, the petitioner has filed these writ petitions.

Plaintiff filed the suit seeking for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property and other reliefs. The defendant filed written statement. On the basis of pleadings of the parties, the Trial Court framed necessary issues. The case was posted for evidence of plaintiff on 18.6.2009. In spite of giving opportunity to the plaintiff to examine himself as PW1, he failed to examine on 18.6.2009, 15.9.2009, 11.3.2010, 23.4.2010, 30.10.2010 and 21.11.2010. In view of that, a cost of Rs. 50/- was imposed on 20.11.2010. On 15.12.2010, again a cost of Rs. 100/- was imposed. Thereafter, on 19.1.2011 a cost of Rs. 150/- was imposed. It was further adjourned to 1.4.2011, 2.6.2011 and 14.7.2011 and imposed cost of Rs. 100/- on 2.1.2012 and finally on 12.1.2012. Plaintiff filed an affidavit in lieu of his examination-in-chief and the case was posted for cross-examination of PW1 on 13.12.2012. On 17.1.2013, he filed a list of documents and he further examined and got marked as Exs. P1 to P16. On 17.8.2013, the case was posted for cross-examination of PW1. After conclusion of defendant''s evidence on 7.3.2014, the case was posted for argument on 27.3.2014, 24.4.2014 and 7.6.2014. When the matter came up for argument, plaintiff filed I.A.8 under Section 151 of CPC requesting to reopen the case for production of list of witnesses, I.A. No. 9 filed under Order 18 Rule 17 of CPC requesting to recall PW1 and I.A. No. 10 filed under Order 16 Rules 1 and 2 of CPC requesting to condone the delay in production of list of witnesses and permit to examine the witnesses.

The Trial Court after considering the matter in detail found that after the lapse of 11 years of filing the suit and that too when the case was posted for argument, the plaintiff filed I.As. No. 8 to 10. There is no bonafide in the said applications were rejected by the Trial Court by its order dated 23.9.2014. Being aggrieved by the same, the petitioner is before this Court.

Sri K.N. Srinivas, learned Advocate appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. The Trial Court ought to have given opportunity to the plaintiff to examine his two witnesses in support of his case. Though the sufficient opportunities were given to the defendant in allowing I.A. Nos. 6 and 7 filed for reopening the case, similar opportunity ought to be extended to the plaintiff. Learned Advocate sought for setting aside the order passed by the Trial Court by allowing the writ petitions.

I have carefully considered the arguments addressed by the learned Advocate appearing for the petitioner and perused the order impugned and other relevant records.

The records clearly disclose that the plaintiff filed the suit in the year 2003 seeking for bare injunction. On the basis of pleadings of the parties, the issues were framed and the case was posted for evidence of PW1 on 18.6.2009. The plaintiff had taken four years time to conclude his evidence. His evidence was concluded on 17.8.2013. Thereafter the case was posted for evidence of the defendant and the same was concluded on 7.3.2014. The Trial Court posted the matter for arguments on 27.3.2014. At that stage, I.A. Nos. 8 to 10 came to be filed. The Trial Court rejected all the three I.As on the ground that when the case was posted for argument, the plaintiff cannot file I.As. No. 8 to 10. I find that there is no infirmity or irregularity in the order passed by the Trial Court. The Trial Court imposed the cost for non-examination of the plaintiff for four times. After conclusion of the trial, when the case was posted for arguments, he cannot maintain the application to permit him to examine some more witnesses and mark documents.

The Hon''ble Supreme Court in a case reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, relying upon the judgment reported in the case of Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, has held that power under provision of Order 8 Rule 17 of CPC is to be sparingly exercised and in appropriate case and not as a general rule merely on the ground that his recalling and reexamining would not cause any prejudice to the parties, that is not the scheme or intention of Order 8 Rule 17 of CPC. Further, such power is to be invoked not to fill up lacuna in the evidence of witness, which has already been recorded. The Hon''ble Supreme Court further observed that the Court should constantly endeavor to follow such a time schedule. If the same is not followed, the purpose of amending several provisions of CPC would be defeated. In the instant case, the plaintiff was examined between 18.6.2009 to 17.8.2013. Thereafter, defendant examined themselves. When the case was posted for arguments, an application was filed under Order 16 Rule 1 of CPC for production of list of witnesses and for reopening of the case to examine the witnesses. It is nothing but filling up of lacuna in the examination of PW1. It is not permissible under law as observed by the Hon''ble Supreme Court. I find that there is no infirmity or irregularity in the order passed by the Trial Court. Therefore, the writ petitions are liable to be dismissed. Accordingly, I pass the following:

ORDER

"The writ petitions stand dismissed."