Sujan Thimoti vs J. Shekar and Others

Aravind Kumar, J.—Heard Sri Anjaneya, learned counsel for petitioner and Shri Narasimha Murthy, learned counsel appearing for caveator respondents 1 and 2.

Petitioner being aggrieved by the orders dated 24.9.2013 (Annexure-A) dismissing I.A. Nos. 15, 16, 18 and 18 and order dated 17.1.2015 (Annexure-Al) dismissing I.A. No. 21, refusing to permit plaintiff to produce documents, amend the plaint, to grant temporary injunction, restraining defendants from alienating the suit schedule property and to summon the second defendant as plaintiff''s witness respectively has preferred these writ petitions.

It is the contention of Sri. Anjaneya, learned counsel appearing for petitioner that trial court ought to have permitted the plaintiff to produce the documents on account of the 1st defendant having accepted the fact that rectification deed had been executed during the pendency of the suit and this has perforced the plaintiff to produce documents and plea raised in that respect ought to have been permitted to be brought on record. He would further contended that on account of 1st defendant attempting to put up construction over suit schedule property and also trying to alienate the same, it was necessary to restrain the defendants by an order of temporary injunction and same having been erroneously refused is liable to be set aside. Hence, he seeks for quashing of the impugned order as per Annexure-A. He would elaborate his submission by contending that order dated 17.1.2015 dismissing I.A. 21 is also erroneous inasmuch as second defendant is the creator of General Power of Attorney Holder and sale deed and DW-1 having stated in his evidence that he is not aware of said facts and 2nd defendant being aware of the same, it was imminent to summon 2nd defendant as a witness and rejection of said prayer by trial court is erroneous.

Per contra, Shri Narasimha Murthy, learned advocate for respondents would support the impugned orders.

Having heard the learned counsel appearing for parties and on perusal of material on record, it would indicate that under I.A. No. 15, plaintiff had sought for production of four documents which includes encumbrance certificates relating to suit schedule property and the legal notices exchanged between the parties namely, plaintiff and first defendant. Plaintiff is claiming to be an agreement holder in respect of the suit schedule property and as such, she has sought for enforcement of the agreement in the suit in question. Certain events which have taken place during the pendency of the suit is sought to be proved by producing certain documents. Initially, Mr. Narasimha Murthy had opposed production of these documents by contending that in order to protract the proceedings, plaintiff has adopted this method. However, he would have hasten to add that if these documents are brought on record, he may not have serious objections, Hence, placing his submission on record, I.A. No. 15 deserves to be allowed.

Adverting to I.A. Nos. 16 and 19 which have been filed by plaintiff for amendment of the plaint as well as grant of temporary injunction, perusal of said applications would clearly indicate that plaintiff intends to place on record plea regarding rectification deed which is said to have been created by 1st defendant. Plaintiff has already got himself examined as P.W. 1 and first defendant has also been examined as D.W. 1. In the affidavit filed in support of the application for amendment namely, I.A. No. 16, plaintiff has not stated as to why this pleading would be necessary or as to why he intends to place on record or in other words as to the reason why such amendment is being brought after commencement of trial is not explained. Though proviso to Rule 17 of Order VI places an embargo for allowing such amendment, catena of judgments of this Court as well as apex Court particularly, in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , it has been held by Apex Court that if such amendment is necessary to decide the real controversy between the parties, it requires to be allowed in the interest of justice. Plaintiff having not whispered a word as to the reason for not raising this plea at the earliest point of time or as to why such plea is relevant for the purpose of deciding the issues in question, it cannot be said rejection of the prayer by trial court is erroneous. Trial Court has rightly arrived at a conclusion that there has been no diligence on the part of plaintiff. Hence, order of the Trial Court rejecting the application for amendment cannot be found fault with. To that extent, impugned order dated 24.9.2013 requires to be affirmed.

I.A. No. 21 which has been filed under Order XVI Rule 1 and 2 of the Code of Civil Procedure, by the plaintiff to summon the second defendant as his witness has been rejected with an observation that first defendant in the objection statement filed to the application has stated that he would not intend to examine second defendant. Trial court has also observed that in the event of second defendant entering the witness box, plaintiff would be entitled to cross-examine him. In the event of second defendant not entering the witness box, it is always open to the plaintiff to make use of his absence to his advantage by raising all such contentions which would be available to him. In that view of the mater, rejection of the application filed by the plaintiff to summon second defendant as plaintiff''s witness cannot be held as erroneous.

For the aforesaid reasons, I proceed to pass the following:--

i) Writ Petition No. 5035/2015 is hereby allowed.

ii) Writ Petition Nos. 5036, 5037 and 5038/2015 are hereby dismissed.

iii) Order dated 24.9.2013 dismissing I.A. No. 15 is set aside and I.A. No. 15 (Annexure-B) is hereby allowed and plaintiff is permitted to produce documents referred to in the application.

iv) Order dated 24.9.2013 (Annexure-A) dismissing I.A. Nos. 16 and 18 are hereby affirmed.

v) Order dated 17.1.2015 (Annexure-A1) is hereby affirmed.

Costs made easy.

Ordered accordingly.