SRI. PETER RAJU S/O YAGAPPA vs MUNIVENKATAPPA S/O LATE EDWARD @ MUNISWAMAPPA

Though these writ petitions are listed for preliminary hearing, with the consent of learned counsel on both sides, they are heard finally.

Petitioner herein is the plaintiff in O.S.No.6561/2009, which is pending on the file of the Prl. City Civil & Sessions Judge at Bengaluru. That suit is filed seeking the relief of permanent injunction as against respondent herein in respect of the suit schedule property. Respondent''s daughter has filed O.S.No.25362/2010, before the same court, seeking the relief of permanent injunction in respect of the very same property. Both the suits were ordered to be transferred to the same court and are clubbed together and common evidence has been let-in. The suit is at the stage of arguments. At that stage, petitioner herein filed two applications: one, under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) and the other under Section 151 of the CPC, wherein the petitioner herein who had let-in evidence as PW.1 intended to recall himself for the purpose of marking certain documents and hence, he had sought reopening of the case. The said applications were objected to by the respondent herein. By the impugned order dated 03/12/2016, the said applications have been dismissed. Being aggrieved, these writ petitions have been preferred.

I have heard learned counsel for the petitioner and learned counsel for respondent as well as perused the material on record.

During the course of submission, petitioner''s counsel drew my attention to the documents that were sought to be marked by way of further evidence namely, further examination-in-chief and contended that, PW.1 intended to get marked an endorsement issued by the Sub-Registrar, Banaswadi; certified copies of two sale deeds that were obtained on 14/07/2016 and 19/08/2016 and an endorsement issued by the Bruhat Bengaluru Mahanagara Palike (BBMP), dated 19/09/2016. She contended that, though the petitioner had sought for marking other documents, the petitioner is restricting marking only the aforesaid documents by way of further examination-in-chief. She submitted that the trial court, in the impugned order, has not opined as to why the endorsement issued by the Sub-Registrar and the endorsement issued by the BBMP are irrelevant for the suit, while it has discussed about the relevancy of the said documents.

In support of her submission, she placed reliance on the decision of the Hon''ble Supreme Court in the case of K.K. Velusamy vs. Palanisamy [2011 AIR SCW 2296] (K.K. Velusamy).

Per contra, learned counsel for the respondent supporting the impugned order contended that the trial court was justified in dismissing the said applications as the documents sought to be marked by the petitioner herein are wholly irrelevant for the adjudication of the suit. In support of his submission, he placed reliance on the decision of the Hon''ble Supreme Court in the case of Gayathri vs. M. Girish [ILR 2016 Kar. 3341], wherein it has been observed that in K.K. Velusamy supra, the Hon''ble Supreme Court has observed that if an application filed seeking recall of a witness for the purpose of producing certain documents is mischievous and frivolous, it is desirable to reject the application with costs. He, therefore, contended that the applications filed in the instant case is frivolous and therefore, the trial court rejected the said applications.

In response, learned counsel for the petitioner drew my attention to the affidavit filed in lsupport of the applications and contended that in respect of the following four documents, the petitioner is inclined to let-in additional evidence as these documents were not available to the petitioner at the time of his letting in evidence and they have been secured subsequent to the conclusion of his evidence namely, endorsement of the Sub-Registrar, Banaswadi; certified copies of the sale deeds dated 14/07/2016 and 19/08/2016 and endorsement issued by BBMP. She submitted that only these four documents have to be marked in evidence in order to prove the conduct of the respondent herein in the suit and not the other documents, which the trial court has held are irrelevant for the case.

On perusal of the impugned order, it is noted that the trial court has not stated as to why the aforesaid documents are not relevant. It has not discussed anything about the endorsement issued by the Sub-Registrar, Banaswadi and the BBMP at all. In the circumstances, I am of the view that the impugned order passed by the trial court has to be modified to the extent of permitting the petitioner herein to mark the aforesaid documents only. For that purpose, PW.1 would have to be recalled by re-opening the case.

Learned counsel for the respective parties submit that the suit is posted to 04/02/2017 and that date the petitioner would let-in his evidence in further examination-in-chief for the purpose of marking only the aforesaid four documents. On that day or any other day as prescribed by the trial court, PW.1 to let-in his further evidence on the aforesaid documents. If he does so, then the respondent is permitted to cross-examine PW.1.

The trial court to dispose of the suit in accordance with law.

The writ petition is disposed in the aforesaid terms.