B. S. MOHAN SATHYANARAYANA RAO v. RAMALINGAIAH HANUMANTHAIAH
2017-06-03
B.VEERAPPA
body2017
DigiLaw.ai
ORDER : B. Veerappa, J. These writ petitions are filed by the defendant against the order dated 31.1.2015 on I.A.29, I.A. Nos.34 and 35 made in O.S. No.29/2004 on the file of the Civil Judge & JMFC., Chikkanayakanahalli allowing the applications filed by the plaintiff to adduce further evidence by producing and confronting the voice recorded cassette to be played in the cassette player before the Court in evidence and to re-open the case affording the plaintiff to lead further evidence in view of the changed circumstances after verifying the documents and to recall D.W.1 subject to further cross- examination by the plaintiff. 2. The plaintiffs filed a suit for permanent injunction restraining the defendant or his agent or anybody from interfering with the plaintiffs- possession contending that the defendant being the rightful owner in possession of the suit schedule property has sold the same to the plaintiffs jointly by entering into an agreement to sell on 21.9.2003, for sale consideration of Rs.2,80,000/- (Rupees Two Lakhs Eighty Thousand Only) by receiving an advance amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) on the date of execution of the agreement and hence, the possession has been delivered to the plaintiff. Therefore, they sought for injunction. 3. The defendant-petitioner filed his written statement denying the entire plaint averments and contended that he is in possession and enjoyment of the suit schedule property as on the date of filing of the suit. Further it is contended that since the very agreement is created for the purpose of filing suit, the same is not maintainable and hence, the suit is liable to be dismissed. 4. When the matter was posted for arguments of the plaintiffs, at that stage, plaintiffs have filed I.A.29/2014 under Section 65A and B of the Indian Evidence Act r/w Section 151 of the Code of Civil Procedure, 1908, permitting them to adduce evidence by producing and confronting the voice recorded cassette and I.A. 34/2015 as well as I.A.35/2015 both under Order 18, Rule 17 , read with section 151 of the Code of Civil Procedure praying to re-open the case and to recall D.W.1 subjecting him for further cross-examination by them. 5. The applications were resisted by the defendant by filing the objections. 6. The trial Court by the impugned order dated 31.1.2015 allowed I.As.29, 34 and 35/2015. Hence, the present writ petitions are filed. 7.
5. The applications were resisted by the defendant by filing the objections. 6. The trial Court by the impugned order dated 31.1.2015 allowed I.As.29, 34 and 35/2015. Hence, the present writ petitions are filed. 7. I have heard the learned Counsel for the parties to the lis. 8. Sri. Ravishankar. D.R., learned Counsel appearing for the petitioner-defendant vehemently contended that the suit is filed only for permanent injunction. The plaintiffs have to produce the documents in support of their case. The present applications are filed when the matter is listed for arguments which is nothing but dilatorily tactics adopted by the plaintiffs only to drag the proceedings. He further contended that the suit is of the year 2004 and when the matter is posted for arguments in the eleventh year of litigation, the present applications are filed and the same cannot be encouraged. 9. It is the further contention of the learned Counsel for the petitioner that in spite of orders passed by this Court on 25.3.2010 in W.P. No. 13644/2008 directing the trial Court to expedite the suit as early as possible not later than nine months from the date of receipt of a copy of the order, though the said order was passed in the year 2010 even after a lapse of 6 years, the plaintiffs have succeeded to drag the proceedings very conveniently. Therefore, he sought to allow the present writ petitions by setting aside the impugned order. 10. Per contra Smt. S.B. Lakshmi, learned Counsel for the respondents sought to justify the impugned order and contended that the present applications are filed for permission under Section 65 A and B of the Indian Evidence Act, to adduce evidence by producing and confronting the voice recorded cassette to be played in the cassette player before the Court in evidence and to re-open and recall D.W.1 only to substantiate his case before the Court to prove that he is in possession and enjoyment of the suit schedule property. Therefore, she sought to dismiss the present writ petitions. 11. Having heard the learned Counsel for the parties, it is not in dispute that the plaintiffs filed a suit for permanent injunction against the defendant in respect of the suit schedule property on the ground that the defendant has executed an agreement of sale on 21.9.2003 and the plaintiffs are in possession and enjoyment of the same.
11. Having heard the learned Counsel for the parties, it is not in dispute that the plaintiffs filed a suit for permanent injunction against the defendant in respect of the suit schedule property on the ground that the defendant has executed an agreement of sale on 21.9.2003 and the plaintiffs are in possession and enjoyment of the same. The said plea is specifically denied by the defendant in the written statement contending that the defendant never executed any agreement of sale. It is created for the purpose of filing the suit and the defendant is in possession and enjoyment of the same. The matter has to be adjudicated by the trial Court to decided whether the plaintiffs have made out a case for grant of permanent injunction. 12. In support of the case of the plaintiffs, they sought to produce certain documents though at a latter stage after a lapse of 11 years in spite of the order dated 25.3.2010 passed by this Court in W.P. No. 13644/2008 directing the trial Court to decide the suit within nine months from the date of receipt of a copy of this order. Since the plaintiffs have filed the applications, the trial Court could have decided the suit as directed by this Court. It is also not in dispute that when the matter was posted for arguments, the present applications are filed for the relief sought for. 13. Without adverting to the merits and demerits of the applications considered by the trial Court, it is suffice to direct the plaintiffs to cross-examine D.W.1 on the next date of hearing i.e., on 21.3.2017 without seeking further adjournment since the matter is of the year 2004 and there is already a direction by this Court to expedite the suit as early as possible permitting the plaintiff to cross-examine D.W.1 on 21.3.2017 without fail, failing which the trial Court shall proceed with the matter and decide the suit in accordance with law expeditiously within three months from 21.3.2017 i.e., on or before Summer Vacation, 2017. 14. However, it is made clear that on 21.3.2017, the learned Counsel for the plaintiffs without seeking further adjournment shall proceed with the case and cross-examine D.W.1 and complete cross-examination. The trial Court shall permit learned Counsel for the plaintiffs to cross-examine D.W.1 without adjourning the matter further and proceed with the case. 15.
14. However, it is made clear that on 21.3.2017, the learned Counsel for the plaintiffs without seeking further adjournment shall proceed with the case and cross-examine D.W.1 and complete cross-examination. The trial Court shall permit learned Counsel for the plaintiffs to cross-examine D.W.1 without adjourning the matter further and proceed with the case. 15. In view of the fact that though the suit is filed in the year 2004, the plaintiffs have conveniently dragged the matter till 2016 in spite of the direction issued by this Court on 25.3.2010 in W.P. No. 13644/2008. Therefore, while disposing of the present writ petitions, the plaintiffs-respondents are liable to pay the cost of Rs.3,000/- on each of the applications to be deposited before the trial Court. 16. Accordingly, writ petitions are disposed of.