Smt. G. Bharathi and Others vs Sri Muniganappa, Bank of Baroda and Indian Bank

A.N. Venugopala Gowda, J.—Petitioners/Plaintiffs have instituted suit against Respondents/Defendants for partition and separate possession in respect of plaint "A" & "B" schedule properties. Defendants have filed written statement and have contested the suit claim. Issues were framed on 10.02.1999. Trial took place. On 07.12.2009, the suit was posted for hearing of the arguments. At the behest of the Defendants, the case was re-opened and posted for further evidence of the Defendants. The Defendants adduced evidence. Cross-examination of DW-4 was completed on 07.08.2010. At that stage, the Plaintiffs filed I.As 11 to 13 to re-open the case of Plaintiffs and seeking leave to produce certified copies of 4 documents and for recalling of PW-1 to adduce further evidence. Objection statement was filed by Defendants 2 & 5. Upon consideration, the trial court having found that the parties are not diligent in prosecuting the matter and the documents sought to be produced could have been produced even earlier and that the translated version of the documents has also not been filed and that the suit could be disposed of without reference to the said controversy in view of the pleading on record, has arrived at the conclusion that the applications have been filed only to drag on the proceedings and as a result, dismissed the same with costs. Defendants evidence was taken as closed and the suit was posted for hearing of arguments. Aggrieved, the Plaintiffs have filed this writ petition.

Heard the learned Counsel on both sides and perused the writ papers.

It is true that, the suit for partition, which was instituted on 20.01.1998, is still pending on account of the non-cooperation of the parties. However, the fact of the matter is that, the delay in disposal of the suit cannot be attributed only for the Plaintiffs. Even the Defendants have contributed for the delay, as is evident from the perusal of the impugned order. The Plaintiffs having come in possession of certain documents, which they claim to be helpful for deciding the case desire to place the same on record by leading further evidence. The trial court while passing the impugned order has observed that, the case could be disposed of without reference to the controversy, in view of the pleadings on record. The said observation would amount to pre-judging of the case, which is not permissible. The relevant evidence cannot be shut on technical considerations. Moreover, the suit on the hand is one which was instituted prior to the amendment of CPC in 1999. Hence, the amended provisions of CPC are not applicable. By placing reliance on the cases decided with reference to the amended provision of Code of Civil Procedure, the trial court has misdirected itself. In order to further cause of justice, the applications ought to have been allowed. In hot doing so, there is misdirection on the part of trial court. The Defendants could have been compensated for the delay caused by the Plaintiffs in disposal of the suit. In my opinion, parties should be afforded reasonable opportunity to bring on) record the relevant evidence.

In the result, I pass the following:

ORDER

i. Writ petitions stand allowed and the impugned order stands set-aside. I.As 11 to 13 filed in the trial court stand allowed.

ii. Plaintiffs are permitted to further examine PW-1, only in respect of the 4 documents permitted to be placed on record. The examination of PW-1 shall be limited to the said aspect only.

iii. The Defendants are permitted to lead rebuttal evidence, if any, which is limited to the evidence produced on record with reference to I.As 10 and 11.

iv. The Plaintiffs shall examine PW-l on 30.09.2010. His cross-examination by the Defendants can take place either on the same day or on the adjourned day as the Trial Court may decide.

v. The Defendants shall place their side of evidence within one week from the date the cross-examination of PW-1 is completed and the cross-examination of Defendants witnesses shall be completed by the Plaintiffs within one week from the date the examination in chief takes place. With the said evidence, the trial of the suit shall be completed.

vi. The learned Counsel appearing on both sides shall address and complete the arguments within two weeks from the date the trial of the suit as above is completed.

vii. Since the Plaintiffs have caused delay in disposal of the suit, they shall pay cost at the rate of Rs. 5,000/- each, to each of the contesting Defendants.

viii. The payment/depositing of cost shall be condition precedent for recalling of PW-1 and his examination as above.

ix. No costs in these writ petitions.