H.M. Shivaprakash vs Sharadamma

B. Manohar, J.—Petitioner is the first defendant in O.S. No. 19/2005. Being aggrieved by the order dated 25-01-2012 passed on I.A. No. 5 by the II Additional Civil Judge and JMFC (Jr. Dn.), Chitradurga, he has filed this writ petition.

In the writ petition, the petitioner has contended that the respondent herein had filed a suit seeking for permanent injunction restraining the defendants from interfering with the suit schedule property and also declaration declaring that the plaintiff is the lawful owner of the suit schedule property. The defendants filed written statement denying the claim made by the plaintiff. The Trial Court after considering the matter decreed the suit filed by the plaintiff. Being aggrieved by the said order, the defendants filed R.A. No. 52/2006 challenging the same on various grounds and also filed an application under Order 41 Rule 27 of CPC praying to permit the appellants to lead additional evidence and to prove their case by summoning the Municipal Authorities and mark the documents as Exs. D10 to D12. The Appellate Court after considering the arguments allowed the appeal and remanded the matter to the Trial Court to accord permission to the appellants to lead additional evidence to prove their case by summoning Municipal authorities as prayed in the application. After remand, the defendants 1 and 2 filed an application I.A. No. 5 under Order 16 Rules 1 and 2 of CPC seeking for condonation of delay in filing the list of witnesses and to allow the said application. The Trial Court by its order impugned in the writ petition dismissed the said application holding that the matter has been remanded only to adduce the additional evidence of Commissioner of CMC, Chitradurga to prove their case. Hence, the list of witnesses cannot be accepted. Being aggrieved by the said order, the first defendant filed this writ petition.

Sri. B.M. Siddappa, learned counsel appearing for the petitioner contended that the order passed by the Trial Court rejecting I.A. No. 5 is contrary to law. The Appellate Court remanded the matter to the Trial Court on an application being filed under Order 41 Rule 27 to permit the appellants to lead additional evidence. In view of the permission granted by the Lower Appellate Court, the application I.A. No. 5 was filed furnishing the names of the witnesses to prove Ex. D1. If the petitioner/first defendant is permitted to examine 3 more witnesses, it will not affect the interest of the plaintiff and sought for setting aside the order passed by the Trial Court by allowing I.A. No. 5 filed by the petitioner herein.

On the other hand, learned counsel appearing for the respondent argued in support of the order passed by the Trial Court and contended that it is not open to the petitioner to widen the scope of remand and the lower Appellate Court remanded the matter to prove Ex. D.1 by examining the officials of the Municipality. Hence, the petitioner cannot examine the unconcerned persons to prove Ex. D1 and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.

The records clearly disclose that the suit filed by the respondents seeking for declaration and injunction was allowed by the Trial Court. Being aggrieved by the said order, the petitioner filed R.A. No. 52/2006. In the said appeal, an application under Order 41 Rule 27 of CPC was filed seeking permission to the appellants to lead additional evidence and to produce documents. The Appellate Court remanded the matter to the Trial Court. The operative portion of the order made in RA No. 52/2006 reads as under:

"1. The I.A. filed by the appellants U/O.41 R. 27 of CPC is hereby allowed.

The matter is remanded back to trial Court for accord permission to the appellants to prove their case by summoning the Municipal authorities as prayed in I.A.

The lower court is directed to dispose of the matter after recording the evidence afresh.

Consequently appeal is closed.

Send back the trial court records immediately."

Reading of the operative portion of the order makes it clear that the matter was remanded back to the Trial Court for according permission to the appellants to prove their case by summoning the Municipal Authorities as prayed in the application. Hence, the petitioner can examine the Municipal authorities to prove their case. On the other hand, he filed I.A. No. 5 under Order 16 Rules 1 and 2 of CPC to condone the delay in filing the list of witnesses and sought for permission to examine them to prove his case. The respondent/plaintiff filed objections to the said application contending that that the petitioner cannot widen the scope of remand and he can confine his prayer to prove the Ex. D1 by examining the Municipal authorities. The Trial Court on examining the matter in detail held that the remand order was restricted to examine the Municipal authorities for proving their case and the petitioner cannot examine some more witnesses and rejected the application. I find no infirmity or irregularity in the said order. The petitioner cannot reopen the matter by examining some more witnesses. Initially, the suit filed by the respondent was decreed by the Trial Court on an appeal filed by the petitioner and the matter was remanded only for examining the officers from the Municipality. Hence, it is not open for the petitioner to examine the persons who are not at all concerned with the case.

The petitioner has not made out a case to interfere with the order passed by the Trial Court on I.A. No. 5. Accordingly, the writ petition is dismissed.