K. Narayanaswamy and Others vs Rathnamma and Others

Budihal R.B., J.—1. Though the matter is listed in the orders list, with the consent of learned counsel on both sides, matters are taken up for final disposal.

These writ petitions are filed by the petitioners-defendant Nos. 6 and 7 seeking to set aside the common order dated 30.4.2015 passed by the trial Court as per Annexure ''S'' in O.S. No. 408/2005.

The respondents 1 and 2-plaintiffs before the trial Court filed the said suit seeking partition and separate possession of their 1/3rd share of suit schedule property against the defendants. The said suit was contested by the defendants including the writ petitioners herein. Suit was decreed for 1/6th share instead of 1/3rd share as claimed by the plaintiffs in the said suit. Defendant Nos. 6 and 7 preferred the appeal challenging the judgment and decree passed in the said suit in R.F.A. No. 714/2009. In the said appeal, the appellants-defendant Nos. 6 and 7 also filed applications seeking amendment of the pleadings and also to lead further evidence by producing additional documents. It was contended by the appellants before the Court that regarding the death of Ramaiah Reddy, they have already produced the document as per Ex.D1 i.e., death ceremony card, which was disputed by the other side. Ultimately, the appellate Court on framing additional issue, has remanded the matter to the trial Court to record its finding on the additional issue. The additional issue framed by the appellate Court reads as follows:

"Whether the defendants No. 6 and 7 prove that the Ramaiah Reddy died as on 3.3.1952 and consequently, if he had died on 3.3.1952, what would be the rights and privileges of the parties in determining their respective shares?"

While remanding the matter for recording finding on the said issue it is also observed by the appellate Court at paragraph No. 19 that ''in so far as additional issue now framed is concerned, the plaintiffs are also permitted to lead rebuttal evidence''. When the matter was remanded to the trial Court for recording finding on the remanded issue, legal representatives of plaintiff No. 2 filed an application under Order 16 Rule 1(A) r/w Section 151 of CPC praying permission to produce list of witnesses and also permission to adduce additional evidence after the evidence of the said witness was over. Legal heirs of plaintiff No. 2 also filed two applications, one under Order 18 Rule 17 r/w Section 151 of CPC seeking to recall P.W.2 and permit her to adduce further evidence pertaining to additional documents and also another application under Order 7 Rule 14(3) r/w Section 151 of CPC seeking to produce certain documents. The trial Court has considered all the applications, which were objected to by the petitioners and passed the common order allowing all the three applications. Being aggrieved by the same, defendant Nos. 6 and 7 are before this Court in theses writ petitions.

Heard the learned counsel for the petitioners-defendant Nos. 6 and 7.

Learned counsel during the course of his arguments submitted that when the matter was before the trial Court no such documents were produced by the plaintiffs and matter was disposed of by the trial Court. Only when the appellate Court by considering the applications filed by defendant Nos. 6 and 7 remanded the matter, then they came up with the said applications. Hence, learned counsel submitted that at that stage the applications were not at all maintainable.

It is also the contention of the learned counsel for the petitioners herein that the documents were produced when the written arguments were submitted before the trial Court. Referring to the evidence of the plaintiffs the learned counsel submitted that the witnesses have also deposed before the Court that they do not know about the date of death of Ramaiah Reddy, but strangely, plaintiffs have come up with the application for examining the printing expert one V. Chandra Prakash and even before the said application was allowed, his affidavit was also filed before the trial Court, which is unknown to law. Learned counsel has submitted that all the applications are filed at a belated stage, which the trial Court ought not to have considered. Hence, the common order passed by the trial Court is patently illegal and not sustainable in law.

Per-contra, learned counsel for the respondents-plaintiffs during the course of his arguments submitted that when the remand order has been passed by the first appellate Court, in paragraph No. 19 of the judgment it is specifically observed by the appellate Court that liberty is also given to the plaintiffs to adduce their evidence. Hence, he submitted that when such liberty has been given by the appellate Court and when the date of death of Ramaiah Reddy was in serious dispute and when the plaintiffs have already disputed the correctness of Ex.D1 and they have also produced some documents i.e., xerox copies with regard to the date of death of Ramaiah Reddy, it was very much necessary for them to lead further evidence in the matter. It is also contended by the learned counsel that when the very date of death of Ramaiah Reddy was under enquiry, it has necessitated the plaintiffs to produce the documents and to examine other witnesses in the matter. There is no illegality committed or any perverse or capricious view taken by the trial Court in allowing such applications. Hence, there is no merit in the writ petitions and the same is to be dismissed.

I have perused the averments made in the writ petitions, common order of the trial Court on the three applications and also pleadings of the parties.

It is an undisputed fact that when the matter was taken up before the first appellate Court in the appeal, the Court framed additional issue with regard to date of death of Ramaiah Reddy and enquiry to be conducted with regard to the said matter. Hence, matter was sent back to the trial Court to record finding on the additional issue by giving opportunity to both sides to adduce their evidence. In that view of the matter plaintiffs filed an application to examine one V. Chandra Prakash, the printing expert with regard to production of other documents. As per another application filed under Order 7 Rule 14(3) is concerned, legal representatives of plaintiffs have sought permission to produce voters identity card and other documents and also sought for permission to lead further evidence in the matter. The trial Court considering the issue involved, on enquiry allowed the said applications.

It is no doubt true that affidavit of V. Chandra Prakash was filed even before the application was allowed. With regard to the same the trial Court has made observation in its order. Simply on the ground that such affidavit is filed before the Court in advance applications cannot be rejected. Looking to the scope of enquiry and the findings recorded by the trial Court in allowing the applications, in my opinion, it was required to pronounce the judgment by the first appellate Court more effectively and satisfactorily.

The writ petitioners herein will be having the opportunity to cross-examine the witnesses whenever such witnesses are examined in addition to the witnesses who are already examined. But if the said applications are refused, plaintiffs will be put to hardship and injury. Hence, I do not find any illegality in the impugned order of the trial Court.

Accordingly, writ petitions are hereby rejected. However, the relevancy of documents is kept open, till they are considered by the Appellate Court.