Dasaiah and Others vs Basavaiah and Others

Budihal R.B., J.—1. Heard the arguments of the learned counsel for the writ petitioners/plaintiffs and also the arguments of the learned counsel appearing for the respondents/defendants.

The writ petitioners being aggrieved by the orders passed by the trial court vide Annexure-D and Annexure-E dated 13.8.2015 in O.S. No. 74/2008 on the file of the Civil Judge(Jr.Dn.) & JMFC, Gundlupet, has filed this writ petition.

The writ petitioner filed interim applications under I.A. No. 12 and 13 before the trial court requesting to re-open the case and to lead further evidence of the plaintiffs. The said applications were opposed by the other side by filing objection statement. Considering the same, ultimately, the trial court rejected both the applications by imposing cost. Being aggrieved by the said order the writ petitioners are before this court.

Learned counsel appearing for the writ petitioners made the submission that the petitioners filed a suit for declaration and mandatory injunction so also for possession as against the defendants. The plaintiffs evidence was completed and thereafter the defendants lead their evidence. During the course of examination of the defendant, document-Ex. D.5 was produced by the defendant''s side. In this connection, learned counsel made the submission that earlier same panchayat has issued documents i.e., endorsement as per Ex. P. 18 stating that no sketch is available with the said Panchayat office. But looking to the documents produced by the other side as per Ex. D.5, the very panchayat has issued the sketch without mentioning the date and the date column is mentioned as nil. In view of this discrepancy, to clarify the same, the plaintiffs filed an application requesting the court to reopen the case and given an opportunity for further examination of the plaintiffs in the case. But the trial court rejected the said application on the ground that it was filed at a belated stage. Hence, learned counsel submitted when the same panchayat office issued two documents, it is necessary for the plaintiffs to clarify the same in further evidence. Hence, submitted that the order passed by the trial court rejecting the applications is illegal and the writ petition be allowed by setting aside the order passed by the trial court and to give an opportunity to the writ petitioners/plaintiffs to go on with the matter.

Per contra, the learned counsel appearing for the respondents/defendants during the course of their argument made the statement that the document Ex. D5 was produced before the trial court in the year 2011 itself. But even then the plaintiffs have not taken any steps in the matter. If really aggrieved by the said document, they could have filed an application at the earliest point of time, i.e., immediately after tendering the document Ex. D.5 in the evidence of the defendants. In this connection, learned counsel for the respondents/defendants draw the attention of the court to the entries in the order sheet of the trial court in the said suit and made the submission that the said document got marked on 30.8.2011 itself. Whereas the applications are filed in the year 2015. Hence, he made the submission that after completing the evidence of the defendant''s side, number of times, the case was adjourned for hearing the arguments. It is his further submission that the plaintiffs simply went on with the matter by taking adjournments and thereafter they have filed the above two applications and the same has also been observed by the trial court in its order that the suit is of the year 2008. Hence, counsel made the submission that there is no illegality in the order passed by the trial court and it is a discretionary order passed by the trial court. Hence, prays for rejecting the writ petition.

I have perused the grounds urged in the writ petition and the impugned order passed by the trial court on the applications I.A. No. 12 and 13. Looking to the applications, it is stated that as there is variance with regard to the endorsement issued by the panchayat in favour of the plaintiffs. Subsequently, when there is no sketch available in their office, the very panchayat has issued an endorsement to the other side which is produced at Ex. D.5, necessitated the plaintiff to file said applications. I have also perused the dates on which the defendants lead their evidence by tendering six documents more particularly, Ex. D.5 before the trial court.

The certified copy of the order sheet maintained in the said suit is also produced. The order dated 30.8.2011 goes to show that the defendants evidence was recorded on that day and the documents-Ex. D.1 to 13 were marked in the evidence of D.W.. 1. Therefore, the learned counsel appearing for the respondents/defendants is right in his submission that the said documents were tendered in evidence about four years back i.e., before filing the said application by the other side. Therefore, if the other side is aggrieved by the said documents, which is said to have been issued by the panchayat, but as observed by the trial court, the plaintiff could have approached the court immediately after filing necessary application in the matter, but it was not done in this case.

Learned counsel for the petitioners/plaintiffs made the submission that subsequently the plaintiff was expired and L.R. application was filed before the trial court and accordingly the cause title of the plaint was amended. Hence, it is the contention of the plaintiffs herein that there is no delay in filing the said application. But considering the materials placed on record, I am of the opinion after concluding the evidence in the suit, number of times the matter was posted for hearing arguments. Looking to the order sheet entries, it is for more than 10 times the case was posted for hearing arguments. Therefore, the trial court is justified in making such observation that the application was filed at a belated stage and the same was rejected by imposing costs. The suit is of the year 2008. Hence, I do not find any illegality committed by the trial court to interfere with the said order of the trial court in this writ petition. Accordingly, the writ petitions are hereby dismissed.