Nagamma and Others vs Basappa

Ravi V. Malimath, J.—The case of the plaintiff is that the suit schedule property bearing Sy. No. 30/329A1 measuring 3 acres and 4 guntas was granted by the order dated 16.11.1977 through a darkasth. The said property has been phodied and given Sy. No. 30/329A1. After the grant, the plaintiff became the absolute owner and he is in possession and enjoyment of the same. He is paying the taxes. Except him, none else have a right or title over the property.

About two months prior to the filing the suit, the defendant tried to trespass into the suit schedule property and tried to interfere with the possession of the plaintiff by destroying the crops. In this regard a panchayath was convened but the defendant did not accept the same. A police complaint was lodged but nothing came out of it. Hence the instant suit was filed seeking for a permanent injunction restraining the defendants from interfering with the plaintiffs possession. On service of notice, the defendants entered appearance and filed their written statement. They denied the plaint averments. No objection has been filed for the IA for temporary injunction. They contended that there is no cause of action to file the suit. The suit is hit by principle of res judicata. That the plaintiff had filed a suit in O.S. No. 123/2004 earlier which was dismissed by the trial court. Hence the second suit on the same cause of action did not lie. That the land bearing sy. No. 30/329A1 was granted to one Basappa. After his death, the katha was changed to the name of the daughters of the said Basappa i.e., Yashodha and Nagamani. The katha was also changed to the aforesaid legal heirs by the will executed by Basappa. There is no land bearing Sy. No. 30/329A1. All these facts have been narrated by the plaintiff in O.S. No. 123/2004 itself. Based on the pleadings, the trial court framed the following issues:

"1. "Whether the plaintiff proves his possession over the suit schedule property?

Whether the plaintiff proves the illegal interference of the defendants over the suit schedule property?

What order or decree?"

The plaintiff was examined as P.W. 1 and got marked 6 documents as Exs. P1 to P6. He was not cross-examined by the defendants inspite of granting sufficient opportunity. There was no evidence by the defendants and consequently no documents were marked. They remained absent. Issues 1 and 2 were held in the affirmative. The suit was decreed. The defendant was restrained from interfering with the plaintiffs peaceful possession and enjoyment. Aggrieved by the same, he filed an appeal. During the pendency of the appeal, IA was filed under Order 41 Rule 27 seeking production of additional documents. The IA was dismissed and the appeal was rejected by confirming the judgment and decree of the trial court. Hence the present second appeal by the defendants.

Learned counsel for the appellants contends that the impugned orders of the courts below are erroneous. That the plaintiff himself had filed suits against the defendant which was dismissed. If these judgments were taken into consideration the present suit could not be decreed. The first appellate court committed an error in rejecting his application seeking production of additional documents. That if the same were considered, the suit was required to be rejected. The case of the defendant is that substantial material was given to his counsel before the trial court who did not file the documents. That it is only when the certified copy of the judgment and decree of the trial court was received, that he came to know of the suit being decreed. Therefore, there is no fault of his. Hence it is prayed that the court may kindly accept the application under Order 41 Rule 27 and to consider the additional documents by condoning the delay.

The First appellate court on going through the records held that the matter was listed for cross-examination of P.W. 1 on 17.10.2009. The suit was decreed on 06.06.2013. IAs 4 to 7 have been filed by the defendant during the pendency of the first appeal. That there is no reason for the defendant to blame the advocate. The records would show that the defendants were interested only in protracting the case. Each one of the documents sought to be produced was examined by the appellate court. It held that most of the documents which have been obtained were subsequent to the filing of the suit and the same were already in custody of the defendants. Even though the defendants could have got the documents marked which were in their possession, they have not done so. They have not even cross-examined the plaintiff. Even though the matter was adjourned for almost three years, the defendants have not exercised their right to defend themselves. Under these circumstances, the applications were rejected.

I'' am of the considered view that the reasoning assigned by the appellate court is just and proper. Law will come to the aid of the person who is diligent. If at all the case of the defendant is true, there is no material to show as to what action has been initiated by him against the lawyer, when, even though he has lost the case. According to him, it is due to the failure of the lawyer to produce the documents or to lead the evidence. If that is so, necessarily he would have to show that he is innocent of the same and the lawyer alone has to be blamed. He has not done so. No action is taken by him against the lawyer in order to show his bona fides. Merely blaming the counsel would be of no avail. In fact, it was the duty of the defendant to present himself for cross-examination. He has failed to do so. Therefore the reasoning assigned by him in seeking production of additional documents has been rightly rejected by the lower court. I do not find any ground to interfere with the order passed by the first appellate court.

Reliance is placed on the judgment reported in Patel Enterprises Vs. M.P. Ahuja, " with reference to para No. 11 and 12 to contend that rules of procedure will have to be understood in a manner so as to advance Justice and not to deny a person from getting an appropriate relief. That the appellate court has the power to entertain an application for additional evidence in order to ensure that justice is done.

In my considered view, no injustice has occurred to the defendant. He was served with the suit summons along with the copy of the IA. He has not even filed objections to the IA for temporary injunction. He has filed the written statement but refrained from attending the court. Evidence of the plaintiff was let in. He has chosen not to cross-examine him. He does not lead evidence. He does not mark any document. He allows the judgment to be rendered by the trial court. Thereafter, when the when he files an appeal challenging the same, the best he has done is that he blames his lawyer for having suffered the decree. Assuming it is true, there is no material to show that the lawyer was to be blamed and not the defendant himself. Therefore, merely trying to cover himself while blaming the counsel would be of no avail. It is needless to state that, it cannot be said that the rules of procedure have to be overlooked and such a conduct of the defendant requires to be appreciated. Sufficient opportunity was granted to the defendant to defend himself. He has chosen not to do so and at such a belated stage, merely blaming a counsel for the decree that he has suffered cannot constitute a ground to allow the applications or to consider the additional evidence.

For all these reasons, I'' am of the considered view that there is no error committed by the appellate court. The first appellate court has rightly rejected the application for production of additional evidence while dismissing the appeal.

For the aforesaid reasons, I do not find any substantial question of law that arises for consideration. The entire case revolves around facts. Consequently, the appeal being devoid of merit is dismissed.