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Judgment
Defendant Nos.3 and 4 have filed these writ petitions against the order dated 01.07.2016 on I.As.19 and 20 to re-open the case and to re-call PW.1 for further cross-examination respectively in O.S. No.152/2012 on the file of the Senior Civil Judge and JMFC Channapattana.
The present respondent No.1 who is the plaintiff before the trial Court filed the suit for recovery of Rs.1,50,20,600/- with 18% interest per annum contending that the defendant Nos.2 to 5 are the partners, carrying on business of money lending and pawn brokers and such other money transaction, under the partnership firm, under the name and style of Sri.Vibhav Finance Corporation, M.G. Road, Channapatna. The plaintiff being one of the customers of the said Vibhav Finance Corporation has fixed his hard earned money in the said Corporation. Though defendants have agreed to pay the interest @ 18% per annum on the Fixed Deposits has not paid in spite of repeated request. Therefore, the plaintiff filed the suit for recovery of money.
The defendant resisted the case of the plaintiff by filing written statement and has denied the entire case of the plaintiff and sought for dismissal of the suit.
When the matter was posted for arguments after completion of evidence, the defendants filed I.A.19 under Section 151 of Code of Civil Procedure to re-open the case and I.A.20 under Order 18 Rule 17 r/w Section 151 of Code of Civil Procedure to recall PW.1 for further cross-examination contending that learned counsel for the defendants applied certified copy of deposition of PW.1 and documents wherein he found that some of the documents are not elicited from the mouth of the PW.1 and also some of the relevant facts which have not been suggested to the witnesses for the reason that at the time of cross examination of PW.1 the junior colleague has not take proper instructions while cross examination of PW.1 and etc.,
The said applications were resisted by plaintiff by filing objections and specifically contended that the applications are filed only to drag the proceedings and protract the case. Therefore, he sought for dismissal of the application.
Considering the applications and objections, the trial Court by the impugned order dated 1.7.2016 ,dismissed both I.As.19 and 20 filed by defendant Nos.3 and 4. Hence, the present writ petitions are filed.
Sri. K.M.Somashekar, learned counsel appearing for the petitioners vehemently contended that the impugned order passed by the trial Court dismissing the applications to re-open and recalling of PW.1 for cross-examnation is erroneous and contrary to the material on record. He further contended that when the matter was posted for cross-examination, certain relevant factors are left out and the same has not been elicited in the mouth of PW.1. If the petitioners- defendants are permitted to cross-examine PW.1, no prejudice will be caused to the plaintiff. If the applications are not allowed, they will be put to great hardship, injury and irreparable loss. Therefore, he sought to set aside the impugned order passed by the trial Court by allowing the present writ petitions.
Learned counsel for the plaintiff Sri.S.Raju sought to justify the impugned order and contended that though the suit filed in the year 2008 till today the defendants are dragging the matter, only to protract the proceedings, these writ petitions have been filed. Therefore, he sought to dismiss the petitions with costs.
I have heard the learned counsel for the parties to the lis.
The only point that arises for my
consideration in these petitions is ''whether the
impugned order passed by the trial Court dismissing the application I.As.19 and 20 is justified in the facts and circumstances of the present case?''
I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the writ petition papers carefully.
Suit is filed for recovery for a sum of Rs.1,50,20,600/- with interest @ 18% per annum on the ground that he is one of the customers and has fixed his amount in the defendants company. In spite of repeated request, they have not paid the amount. The said plaint averments is totally denied by the defendants by filing the written statement. When the matter is posted for arguments, defendants have filed I.As.19 and 20 to re-open the case and to recall PW.1 for cross-examination respectively.
Taking into consideration the fact and circumstances of the present case, an opportunity should be given to the defendants to cross-examine PW.1 as sought for, at the same time, defendants should not drag the proceedings further, since the matter is of the year 2008 and now we are in the year 2017. To provide one more opportunity, as a last chance to cross-examine PW.1 on payment of cost, the defendants have to be permitted to cross-examine PW.1 in the interest of justice. Accordingly, the point raised in these writ petition has to be answered in the negative holding that the Trial Court is not justified is dismissing the applications IA No.19 & 20.
For the reasons stated above, the Writ Petitions are allowed, the impugned order dated 01.07.2016 passed by the Senior Civil Judge and JMFC., Channapatna on I.A.Nos.19 and 20 in O.S. No.152/2012 is quashed, subject to payment of cost of Rs.10,000/- payable by the defendants to the plaintiff before the trial Court, subject to the condition that on the next date of hearing, the defendants shall cross- examine PW.1, failing which the trial Court shall proceed with the suit and pass orders in accordance with law. (The parties are directed to appear before the trial Court on 16.03.2017 ) The defendants are also permitted to file the application for advancement of the case from 31.03.2017 to any other date.
Ordered accordingly.