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Judgment
S.G. Pandit, J
Heard Sri. Kiran.V.Ron, learned Additional Advocate General along with Sri. Thejesh.P., HCGP for the petitioners and Sri. Udaya Holla, learned Senior Counsel along with Sri. Chandan Vamshi, learned counsel for the caveator/respondent. Perused the writ petition papers.
The petitioners-State Authorities, plaintiffs in O.S.No.1424/2006 on the file of the Senior Civil Judge, Devanahalli, Bengaluru Rural District are before this Court, aggrieved by the rejection of I.A.Nos.6, 7 and 8/2023 filed under Section 151 of CPC to reopen the stage of suit to lead further evidence of PW2; under Order 18 Rule 17 of CPC; to recall PW.2 to lead further evidence and under Order 7 Rule 14 of CPC to produce additional documents.
Learned AAG would submit that the suit of the petitioners is to declare that the suit schedule lands and trees are part and parcel of the Buvanahalli Forest Block in Devanahalli Taluk and defendant has no manner of right and title and for consequential injunction. It is submitted that the suit was dismissed on 08.03.2012. Against which, Regular First Appeal No.1287/2012 was filed before this Court, which was also dismissed by judgment dated 16.04.2021. Against which, Civil Appeal No.5801/2022 was filed before the Hon'ble Supreme Court of India. It is submitted that the Hon'ble Supreme Court of India by judgment dated 20.09.2022 set aside the judgment of the trial Court as well as High Court and remanded the matter to the trial Court for fresh decision after affording an opportunity for leading evidence to the appellant, both documentary and oral and corresponding right of rebuttal to the respondent to lead oral and documentary evidence. Further, it was observed that the trial Court to make endeavour to decide the suit preferably within a year.
Learned AAG would further submit that no doubt after remand, the petitioners-plaintiffs lead their evidence but when the matter was at the stage of arguments, the petitioners-plaintiffs filed I.A.Nos.6, 7 and 8/2023 to recall PW.1 for further evidence and also for production of documents. The trial Court without appreciating as to whether the documents would be necessary for proper adjudication of dispute between the parties, only on the ground that time granted by the Hon'ble Supreme Court of India i.e., one year to dispose of the suit, nearing completion, dismissed the applications. Learned AAG submits that those documents are absolutely necessary for adjudication of LIS between the parties. It is submitted that the suit schedule property is notified forest under Notification dated 08.01.1921. Thus, learned AAG would pray for an opportunity to the State to lead further evidence and to mark the documents. Learned AAG would undertake that on the fixed date, the State would examine PW.2 further and mark documents and would commence argument immediately thereafter.
Per contra, learned Senior Counsel Sri. Udaya Holla on behalf of Sri.Chandan Vamshi, learned counsel for the respondent would submit that the State has already lead evidence and there is no necessity to give further opportunity to lead evidence. Moreover, he submits that the suit is of the year 1997 and plaintiff is dragging on the proceedings, as such he prays for dismissal of the writ petition. However, he submits that if the State is ready to go on with the evidence on the date fixed and if the State completes the evidence on the same day, let an opportunity be given to the petitioners-plaintiffs.
Having considered the submissions of the learned counsels for the parties and on perusal of the writ petition papers, I am of the view that State is to be given an opportunity to lead further evidence on the date fixed by this Court.
Paragraph 20 of the Judgement dated 20.09.2022 in Civil Appeal No.5801/2022 reads as follows:
"20. For the reasons recorded above the appeal is allowed. The impugned judgment of the High Court dated 16.04.2021 and that of the Trial Court dated 08.03.2012 are set aside. The matter is remanded to the Trial Court for afresh decision after affording due opportunity of leading evidence to the appellant both documentary and oral and corresponding right of rebuttal to the respondent to lead oral and documentary evidence. As the suit is of the year 1997, we expect the Trial Court to make an endeavor to decide the suit expeditiously preferably within a period of one year. It goes without saying that the parties will extend their cooperation in early disposal of the suit. There shall however be no order as to costs."
While remanding the matter, the Hon'ble Apex Court observed that the trial Court to make endeavour to decide the suit expeditiously preferably within a period of one year. Learned AAG would submit that though the matter was disposed of on 20.09.2022, the records were received by the trial Court in December, 2022 and after remand, the first date of hearing was on 21.01.2023. Therefore, it cannot be said that the Trial Court has crossed the time granted by the Hon’ble Supreme Court. In a remanded suit, fixing certain time for disposal, if applications as filed in this suit is filed, though the time granted by Higher Court is nearing completion, such applications are required to be considered on its merit and Court has a duty to examine as to whether such application/s needs to be allowed taking note of facts and situation of each case. Only on the ground that time granted by Higher Court is nearing completion, applications cannot be dismissed. Courts are meant for doing substantial justice.
In the case on hand, I.A under Section 151 of CPC is filed to re-open the stage to examine PW2 further, to mark documents. The suit is by State Government claiming suit schedule property is notified forest land. When suit involves State claim, Court shall be more cautious. Power conferred upon the Court under Order XVIII Rule 17 of CPC can be invoked either on applications by parties or suo motu, but it has to be used in appropriate cases, sparingly. It is the case of petitioners/plaintiffs that the documents now sought to be produced and marked through PW2 by re-calling are documents which were not available earlier. It is true that suit is set down for judgment. Normally, when suit is set down for judgment, application to re-call and further evidence would not be entertained. But, Court in appropriate cases can exercise its discretion to permit re-opening of evidence for further examination/cross-examination, even when case has been reserved for judgment (K.K.VELUSAMY VS. N.PALANISAMY ((2011)11 SCC 275).
In the instant case, as the State claims that suit schedule property is notified forest land and State interest is involved as against individual interest, I am of the view that State is to be given one final opportunity to lead further evidence and mark documents and rebuttal opportunity to the respondent/defendant. Hence, the following:
ORDER
(i) Impugned order dated 30.09.2023 on I.A.Nos.6, 7 and 8/2023 in O.S.No.1424/2006 on the file of the Senior Civil Judge, Devanahalli, is set aside and consequently, I.A.Nos.6, 7 and 8/2023 are allowed.
(ii) The petitioners-plaintiffs shall examine PW.2 on the next date i.e., on 31.10.2023 and complete their evidence. The respondent-defendant is given an opportunity to lead further evidence if any. Immediately thereafter, the petitioners-plaintiffs shall commence arguments on the main suit.
(iii) The trial Court shall endeavour for disposal of the suit on or before 20.12.2023.
(iv) With the above, writ petition stands disposed off.