Shaik Maula Ali vs P Anusuya

S.G. Pandit, J

The petitioner, defendant in O.S.No.250/2013 on the file of the Senior Civil Judge and JMFC, Devanahalli, is before this Court challenging the orders dated 06.10.2023 and 09.10.2023 posting the suit for arguments without providing an opportunity to the petitioner-defendant to lead his evidence.

Heard Sri. Shravan Madhav.K.P., learned counsel for Smt. Irfana Nazeer, learned counsel for the petitioner and Sri. H.T.Nataraj, learned counsel for the respondent-plaintiff. Perused the writ petition papers.

Learned counsel for the petitioner would submit that when the suit was at the stage of petitioner-defendant's evidence on 07.10.2023, the petitioner-defendant filed I.A.No.13 under Order 12 Rule 6 of the Code of Civil Procedure, 1908 (for short 'CPC'). The said application was posted to 09.10.2023 for filing objection by respondent-plaintiff. On 09.10.2023 itself, the Court considered I.A.No.13 and dismissed I.A.No.13 filed by the petitioner-defendant and defendant's evidence is taken as nill and suit was posted for arguments. Learned counsel for the petitioner would further submit that the petitioner-defendant is aggrieved by portion of the order, where defendant's evidence is taken as nill and case is posted for arguments. Learned counsel further submits that the trial Court ought to have provided an opportunity to the petitioner-defendant to lead his evidence, since the matter was at the stage of defendant's evidence when I.A.No.13 was filed. It is submitted that on passing order on I.A.No.13 suit ought to have been posted at the same stage when I.A.No.13 was filed.

Per contra, learned counsel Sri. H.T.Nataraj would submit that a Co-ordinate Bench of this Court in CRP.No.80/2023 dated 21.06.2023 directed the trial Court to dispose of the matter within a period of six months. It is further submitted that the petitioner-defendant only with an intension to protract the proceedings, filed I.A.No.13 and remained absent on 09.10.2023 the date of hearing. Taking note of the conduct of the petitioner-defendant, the trial Court rightly taken defendant's evidence as nill and posted the suit for arguments. Thus, he prays for dismissal of the writ petition.

Having heard the learned counsels for the parties and on perusal of the writ petition papers, I am of the view that the petitioner-defendant needs to be given an opportunity to lead his evidence. Hence, impugned order insofar as the Court has taken defendant's evidence as nill and posted the suit for arguments needs to be set aside.

Admittedly, the suit was set down for defendant's evidence on 07.10.2023 and on the said date, the petitioner-defendant filed I.A.No.13 under Order 12 Rule 6 of CPC. The suit was posted to 09.10.2023 for plaintiff's objection to I.A.No.13 and to here I.A.No.13. On 09.10.2023, the petitioner-defendant's Advocate remained absent and on his behalf, time was prayed. The trial Court rejected the request made on behalf of the petitioner-defendant taking note of the direction of this Court made in CRP.No.80/2023. The trial Court rightly heard the learned counsel for the respondent-plaintiff and proceeded to pass order rejecting I.A.No.13 filed under Order 12 Rule 6 of CPC. But the trial Court committed an error while dismissing I.A.No.13 taking defendant's evidence as nill and posting the suit for arguments. Admittedly, when I.A.No.13 was filed, the suit was at the stage of defendant's evidence. When orders are passed on I.A.No.13, stage at which the said application was filed ought to have been continued. Moreover, the defendant has not led his evidence in the suit and defendant is entitled for an opportunity to lead his evidence. Taking note of the above facts and circumstances of the case, I proceed to pass the following:

ORDER

(i) Impugned order dated 09.10.2023 in O.S.No.250/2013 on the file of the Senior Civil Judge and JMFC, Devanahalli, insofar as taking ‘defendant's evidence as nill and posting the suit for arguments’ is set aside.

(ii) Learned counsel for the petitioner would submit that the petitioner-defendant would file defendant's evidence on 06.11.2023. Learned counsel Sri. H.T.Nataraj on behalf of respondent-plaintiff would submit that the plaintiff would cross-examine the defendant on the next day i.e., 07.11.2023.

(iii) The petition is allowed with cost of Rs.10,000/-payable to the respondent-plaintiff on the next date i.e., on 06.11.2023.

(iv) It is made clear that the petitioner-defendant shall not take further time on 06.11.2023 and shall go on with the suit by filing defendant's evidence. If the petitioner/defendant fails to file affidavit evidence on 06.11.2023, he would forfeit his right to lead evidence.