Sri Srinivasa Reddy vs Sri D. Ramappa

A.N. Venugopala Gowda, J.—Petitioner has filed a suit on 15.12.93 for partition and separate possession claiming 1/3rd share against the Respondent and others. The Defendants filed written statement on 12.8.97, An additional written statement was filed on 13.8.01. Issues having been framed, the parties have adduced evidence. The Respondent who is the 3rd Defendant in the suit, has deposed as DW-1. His affidavit evidence was filed on 7.11.05 and he was subjected to cross-examination on 3.1.06, 10.1.06 and 8.3.06. Thereafter, the Plaintiff filed application seeking amendment of the plaint and the same was allowed. The Defendants did not choose to file their written statement. After about two and half years'' delay, an application was filed seeking permission to file additional written statement to the amended plaint. The Trial Court declined to accept the additional written statement and dismissed the application by an order dated 18.1.10, which was questioned by the Respondent and others in W.P.4165/10. By an order dated 15.4.10, the writ petition was dismissed.

The Respondent filed further examination in chief -affidavit evidence dated 30.8.10. The Plaintiff objected the filing of further affidavit evidence by the Respondent. The Trial Court has permitted the Defendant to depose in the matter i.e., in terms of the affidavit evidence filed on 30.8.10. Said order has been questioned by the Plaintiff in this writ petition.

Sri G.S. Bhat, learned Counsel appearing for the Petitioner, by relying upon the decision of the Apex Court in the case of Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, , contended that, filing of repeated affidavit evidence is not permissible and the Trial Court, by erroneously overruling the valid objections of the Plaintiff, has committed an irrational act.

Sri K.V. Narasimhan, learned Counsel appearing for the Respondent on the other hand contended that, the Plaintiff having amended the plaint, the Defendants are entitled to place additional evidence and hence, the affidavit dated 30.8.10 was filed and in the circumstances, the impugned order of the Trial Court is justified.

I have considered the rival contentions. The point for consideration is:

Whether the Trial Court is justified in accepting the affidavit evidence of the Respondent dated 30.8.10?

After the Plaintiff amended the plaint in 2007, additional written statement to the amended plaint was not filed. The attempt made to file the additional written statement belatedly, did not fructify in view of the order of the Trial Court dated 18.1.90 and its affirmation in W.P.4165/10 vide order dated 16.4.10. The Defendants having failed to file the additional written statement with regard to the amended plaint is concerned, in the absence of a pleading, it is not open to the Respondent to have filed the affidavit evidence dated 30.8.10. At best, the Trial Court could have permitted the recalling of DW-1 for deposing further in the suit by way of limited further examination-in-chief and subjecting him to cross-examination by the Plaintiff. The order passed impugned herein, being otherwise, is irrational and illegal.

In the result, the writ petition stands allowed and the impugned order stands quashed. The affidavit filed by the Respondent dated 30.8.10 stands struck off from the record.

However, the Respondent is at liberty to depose further by way of examination-in-chief on the next date of hearing of the suit, the deposition being limited to the amended portion of the plaint. The Plaintiff has the right of cross-examination of DW-1.

The suit being one for partition and separate possession and having been instituted on 15.12.93, the Trial Court is directed to decide the suit with utmost expedition at any event, within a period of 3 months from the date a copy of this order is placed on its record by either of the parties.

No costs.