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2016 DIGILAW 201 (KAR)

Abdulrajak v. Abdul Rahiman

2016-02-25

ARAVIND KUMAR

body2016
ORDER : Aravind Kumar, J. Heard Sri. Ashok S. Kinagi, learned advocate appearing for petitioners/defendants. Respondents are served and unrepresented. Perused the records. 2. Defendants in O.S. No. 54/2006 filed an application in I.A. No. 12 under Order 8, Rule 1 (3) of C.P.C. seeking permission to produce documents indicated in the list enclosed to said application. By order dated 01.08.2015 - Annexure-F, said application has been rejected on the ground that without prayer for reopening of the case, said application is not maintainable and also on the ground that it has been filed to drag on the proceedings. Thereafter, three applications came to be filed i.e., I.A. No. 13 for appointment of City Surveyor as Court Commissioner for local inspection of suit property CTS Nos. 580/1B and 580/2 and I.A. Nos. 14 and 15 for recall of DW. 1 and for production of documents. These three applications came to be rejected by order dated 07.11.2015 - Annexure-N and same is impugned in these writ petitions. 3. It is the contention of learned Advocate appearing for petitioners/defendants that trial Court ought to have extended an opportunity to defendants to place the documents in question to establish their title of and not granting an opportunity to defendants to produce these documents has prejudiced the rights of defendants. Hence, he prays for writ petitions being allowed by quashing the impugned order. 4. Perusal of records would indicate that suit in question has been filed for the relief of perpetual injunction and also for mandatory injunction to close the doors and windows on the ground it is unauthorized. Affidavit filed in support of the application seeking for production of documents would indicate that plaintiffs have relied upon judgment and decree passed in O.S. No. 385/2005 relating to property bearing CTS No. 580/2. According to defendants, said judgment and decree was subject matter of appeal in R.A. No. 60/2012 and said appeal is said to have ended in favour of defendants and to substantiate defence setup in the written statement, defendants are seeking for production of certified copy of said judgment and decree. When parties to the said judgment and decree are parties to the suit in question these documents may have some relevancy. When parties to the said judgment and decree are parties to the suit in question these documents may have some relevancy. Though, said judgment and decree against which R.A. No. 60/2012 came to be filed is not indicated, this Court is of considered view in order to put a quietus to the litigation between the parties and avoid further multiplicity of proceedings same is required to be permitted to be produced and it would not cause any hardship to plaintiffs. 5. Defendants have also sought to produce certified copy of sale-deed said to have been executed on 23.01.2012 in favour of 2nd defendant by the Municipal Council during the pendency of said suit. Reasons as to why said sale-deed was not produced earlier is not forthcoming in the affidavit supporting the application. Reason for non-production of certified copies of CTS extracts which are sought to be produced is said to have been obtained by defendants on 15.10.2015. In other words, there has been delay in producing these documents and for such delay plaintiffs can be suitably compensated by awarding costs and as such this Court is of considered view that documents sought for being produced is to be permitted. Defendants having been already discharged are required to tender evidence in this regard and as such I.A. Nos. 14 and 15 deserve to be allowed. 6. However, insofar as application filed under Order 26, Rule 9, CPC is concerned, trial Court has rightly rejected the same and there is no error in this regard and as such order of rejection of I.A. No.13 dated 17.11.2015 deserves to be affirmed. Since I.A. Nos. 14 and 15 have been allowed, question of examining order dated 01.08.2015 - Annexure-F would not be necessary. Hence, I proceed to pass the following: ORDER (i) Writ petition is hereby allowed in part. (ii) Order dated 07.11.2015 dismissing I.A. Nos. 14 and 15 is hereby set aside. (iii) I.A. Nos. 14 an 15 filed for production of documents and recall of DW. 1 as per Annexures - 'J' and 'L' are hereby allowed on payment of cost of Rs.5,000/- (Rupees Five Thousand Only) each and subject to following conditions: (a) Defendants on payment of cost shall examine DW. 1 by producing the documents (referred to in I.A. 15) without fail and cross-examination of DW. 1 as per Annexures - 'J' and 'L' are hereby allowed on payment of cost of Rs.5,000/- (Rupees Five Thousand Only) each and subject to following conditions: (a) Defendants on payment of cost shall examine DW. 1 by producing the documents (referred to in I.A. 15) without fail and cross-examination of DW. 1 shall be completed by plaintiffs either on same day or not later than next date of hearing which shall not be more than 10 days from date of examination-in-chief. (b) Trial Court shall hear final arguments expeditiously and dispose of the suit on or before 15.03.2016. (c) In the event of either of parties were to seek for any adjournment without satisfaction of trial Court, it would be at liberty to impose exemplary costs on such of those party keeping in mind Order 17 of CPC. Order accordingly.