Hanumanthaiah and Others vs Jayamma

B. Manohar, J.—Heard the learned Advocate appearing for the petitioners.

Petitioners are the defendants in OS No. 168/2008 on the file of the Additional Civil Judge and JMFC, Nelamangala. Being aggrieved by the order dated 5.12.2014 rejecting I.A. No. 5 filed under 18 Rule 17 of CPC praying to recall the order dated 19.11.2014 and permit the defendants to further cross-examine PW1 and I.A. No. 6 filed under Section 151 of CPC praying to reopen the case, the petitioners have filed these writ petitions.

The respondent herein filed the suit seeking for permanent injunction restraining the defendants from interfering with the peaceful possession of the suit schedule property. Defendants entered appearance and filed written statement. On the basis of pleadings of the parties, the Trial Court framed necessary issues. The parties went for trial. Plaintiff got examined herself as PW1 on 25.9.2012 and the case was posted for cross-examination of PW1 on 15.1.2013. On the said date, neither the defendants'' counsel nor defendants were present before Court. In view of that, the Trial Court taken the cross-examination of PW1 as nil and posted the matter for evidence of defendants. On 22.10.2013 the defendants and their counsel remained absent. In view of that, the matter was posted for arguments on 12.11.2013. On the said date, it was adjourned to 30.11.2013 for arguments. On that date, the Advocate appearing for the defendants filed I.A. No. 5 under Order 18 Rule 17 of CPC to reopen the case and permit the defendants to cross-examine the plaintiff and lead evidence of defendants. The said application was allowed imposing cost of Rs. 500/-. The case was adjourned to 12.12.2013 for cross-examination of PW1. On that date also, neither the defendants nor their Advocate present. In view of that, cross-examination of PW1 has taken as nil. Hence, the Trial Court adjourned the matter for arguments on 7.1.2014. On 7.1.2014, an application was filed for reopening and permitting the defendants to cross-examine PW1 and to lead evidence of defendants. The Trial Court allowed the said application imposing cost of Rs. 500/- and adjourned the matter for cross-examination of PW1 on 12.8.2014. On the said date, PW1 was present, but the defendant was absent, the counsel for defendant partly cross-examined and the case was adjourned to 20.9.2014. On 20.9.2014 once again sought for time. Hence, the evidence of PW1 was closed and posted the matter for evidence of defendant on 19.11.2014. Thereafter I.A. Nos. V and VI were filed for reopening and recalling PW1 for cross-examination.

The Trial Court after considering the matter in detail rejected the application taking into consideration the fact that more than three times, PW1 was recalled and opportunity was given to the defendant for cross-examination. The petitioner has not availed the opportunity. Being aggrieved by the same, the petitioners have filed these writ petitions.

I have carefully considered the arguments addressed by the petitioners and perused the order impugned passed by the Trial Court and other relevant records.

The records clearly disclose that defendants had taken time from September, 2012 to cross-examine PW1 invoking provision under Order 18 Rule 17 of CPC thrice to reopen the case and cross-examine PW1. In spite of giving sufficient opportunity, they did not avail the same and cross-examine PW1. The Hon''ble Supreme Court in a judgment reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, has laid down a law that power under the provision of Order 18 Rule 17 of CPC is to be sparingly exercised in an appropriate case and not as a general rule, merely on the ground that recalling and reexamining would not prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 of CPC. The Hon''ble Supreme Court further held that if the said provision is used in routine manner, it will defeat the very purpose of amendment of CPC. In the instant case, from 25.9.2012 till the month of December, 2014, the defendants had taken time on 22.10.2013, 7.1.2014 and 12.8.2014. In order to give opportunity to the defendants, the case was reopened on 30.11.2013, 11.6.2014 and 20.9.2014. If Order 18 Rule 17 of CPC is invoked routinely, it will defeat the very purpose of amendment of CPC. The Trial Court taking into consideration all these aspects of the matter, rejected I.As.5 and 6. I find no infirmity or irregularity in the order passed by the Trial Court. The petitioners have not made out prima facie case to interfere with the order impugned. Accordingly, I pass the following:

ORDER

The writ petitions stand dismissed.