Geetha G. Kamath vs Prakash S. and Others

Budihal R.B., J.—1. These petitions are filed by the petitioner-defendant No. 18 challenging the order dated 01.08.2015 passed by the Principal Senior Civil Judge & A.C.J.M., at Puttur, on the applications I.A. Nos. 13, 14, 15 and 16 as per Annexure-M.

The applications were filed under Order 18 Rule 17 read with Section 151 of CPC and under Order 8 Rule 9 of CPC requesting the Trial Court to reopen and recall P.W. 1 for the purpose of further cross-examination and also to permit defendant No. 18 i.e., petitioner herein to file the additional written statement by condoning the delay in filing the additional written statement. The said applications were opposed by respondent Nos. 1 and 2-plaintiffs. After considering the merits of the applications, the Trial Court rejected all those applications by the common order, which has been challenged in these petitions.

Heard the learned counsel appearing for petitioner-defendant No. 18 and also the learned counsel appearing for respondent Nos. 1 and 2-plaintiffs.

Learned counsel for the petitioner has submitted that he has filed the written statement along with other defendants. It is his contention that other defendant, who is brother of defendant No. 18, has not pleaded all the necessary facts in the written statement. He has further submitted that the relationship between the sister and the petitioner is strained, because of that reason, all the contentions were not taken in the written statement. Hence, it is the contention of the petitioner that he wanted to file additional written statement about the new facts, which he came to know and he also wanted to produce the documents, which are necessary for the fair disposal of the matter.

Learned counsel has further submitted that the Trial Court considered only the application I.A. No. 16 for filing additional written statement and other applications were not considered by it while passing the impugned order. It is also contended that, the said application was filed as new grounds taken in the additional written statement were necessary for fair disposal of the suit. He has submitted that the Trial Court rejected the applications only on the ground of delay. In support of his contention, learned counsel has relied upon the decision of the Hon''ble Supreme Court reported in , (2009) 15 SCC 528 in the case of Olympic Industries vs. Mulla Hussainy Bhai Mulla Akberally and others and drew the attention of this Court to the relevant paragraphs i.e., paragraph Nos. 9, 10, 11, 14 and 18. He has submitted that the order passed by the Trial Court is illegal and not sustainable in law and hence, to set-aside the same by allowing these petitions.

Per contra, learned counsel for the respondent Nos. 1 and 2-plaintiffs has submitted that the said applications were filed when the evidence on the side of the plaintiffs was concluded and when the witnesses were also examined on the side of the defendants and when the evidence of D.W. 4 was partly recorded by the Trial Court, at that point of time, petitioner-defendant No. 18 had come up with the said applications. He has also submitted that the grounds, which were taken by the applicant in the additional written statement, were already considered and they were taken in the original written statement, which was already filed.

He has submitted that the suit filed by the respondent Nos. 1 and 2-plaintiffs is with regard to redemption of ''B'' schedule property and also partition and separate possession of the their legitimate share in the suit schedule property.

It is his contention that the said applications were filed only with an intention to drag on the proceedings and to delay the proceedings and there are no merits in the said applications. The Trial Court has considered all the applications and assigned cogent reasons for rejecting the said applications. There is no merit in these petitions and hence, submitted to reject the same.

I have perused the grounds urged in the petition, common order dated 01.08.2015 passed by the Trial Court on the applications filed by the petitioner-defendant No. 18. It is the contention of the learned counsel for the petitioner that he believed that all the contentions were raised in the original written statement, but the important material facts were not pleaded in the original written statement. The written statement was filed in the year 2008 and there is signature of defendant No. 18, who is the petitioner herein, on the same. Now petitioner had come up with the case that the other defendants, who are not in good terms with petitioner-defendant No. 18, purposely not pleaded the important material facts to oppose the suit filed by the respondent Nos. 1 and 2-plaintiffs. If this is the fact according to the applicant, he could have filed the applications at the earliest point of time. Though the original written statement was filed in the year 2008, he had come up with the said applications in the year 2015 i.e., after lapse of seven years, and when the evidence of the plaintiffs side was over and even four witnesses on the side of defendants have been examined in the suit. Petitioner has not made out a case.

With regard to the two documents that petitioner has produced, they are old documents, executed much earlier to the filing of the original written statement.

I have also perused the decision relied upon by the learned counsel for petitioner-defendant No. 18, which is referred above and also the relevant paragraphs in the said decision, but the facts and circumstances in the said reported decision and the facts and circumstances in the case on hand are not one and the same. Therefore, considering these aspects of the matter and also the reasons assigned by the Trial Court while rejecting the applications, the Trial Court extensively considered each and every aspect of the matter and the contentions raised by both sides and by assigning valid and sound reasons, rejected the applications.

Looking to the order passed by the Trial Court, it is not only the application I.A. No. 16 that was considered, but it clearly shows that all the applications were considered and then the Trial Court passed the considered order on merits. No illegality in the order passed by the Trial Court. Hence, there is no merit in this petition. Accordingly, same is hereby dismissed.