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2018 DIGILAW 1226 (KAR)

S. M. Eshwara Reddy S/o S. v. Munishamaiah VS Kaverappa S/o Kondappa @ Chikkakondappa

2018-12-19

ALOK ARADHE

body2018
ORDER : 1. Sri. Sadashivaiah K.G. learned counsel for the petitioners. 2. Heard on the question of admission. 3. In these petitions under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 07.12.2018, by which the application preferred by the petitioners under Order XVIII Rule 17 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been dismissed by the Trial Court. 4. Facts giving raise to the filing of the petitions are that original plaintiff filed a suit for declaration and permanent injunction on 04.02.2004. The defendant No. 4 and defendant No. 1 filed the written statement on 13.04.2005 and 13.04.2005 respectively. On 16.01.2010, the defendant No. 1 filed the additional written statement. ON 29.08.2016, the Trial Court framed additional issues. The petitioners filed an application on 07.12.2018 for re-opening and recalling Defend Witness 2 and 3 for cross-examination. The aforesaid applications have been rejected vide impugned order dated 07.12.2018. 5. Learned counsel for the petitioners submitted that he be granted one opportunity to cross examine defendant Witnesses No. 2 and 3 and he shall cross examine them on the aforesaid date. However, it was fairly admitted by the learned counsel for the petitioners that the suit is of the year 2004 and the final arguments in the suit have been heard and the case is posted for delivery of judgment on 21.12.2018. 6. I have considered the submissions made by the learned counsel for the petitioners and have perused the record. From perusal of the record it is evident that the applications were filed when the suit was set down for arguments. The Trial Court has also held that the application for recalling the defence witnesses have been made for the fourth time. It has further been held that the plaintiffs are systematically protracting the proceedings on one pretext or the other and no satisfactory reasons have been assigned in the affidavits in support of the applications to recall the witnesses. It has further been held that the applications lacks bonafide. The impugned order neither suffers from any jurisdiction infirmity nor any error apparent on the face of the record specially at this stage when the proceeding in the suit are concluded and the suit is fixed for delivery of judgment on 21.12.2018. It has further been held that the applications lacks bonafide. The impugned order neither suffers from any jurisdiction infirmity nor any error apparent on the face of the record specially at this stage when the proceeding in the suit are concluded and the suit is fixed for delivery of judgment on 21.12.2018. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. Radhey Shyam and Another vs. Chhabi Nath and Others, (2015) 5 SCC 423 , Jai Singh and Others vs. M.C.D. and Others, (2010) 9 SCC 385 and Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 . In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution. 7. In the result, I do not find any merit in the petition. The same fails and is accordingly dismissed.