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2018 DIGILAW 40 (KAR)

Puttegowda S/o late Subbegowda v. Kamalamma W/o Puttegowda

2018-01-04

B.VEERAPPA

body2018
ORDER : 1. The plaintiffs 1 and 2 filed the present writ petitions against the order dated 27.02.2017 rejecting applications No.11 to 13 made in O.S.No.151/2006 on the file of Senior Civil Judge and JMFC, K.R. Pet. 2. The petitioners-plaintiffs filed O.S.No.151/2006 for declaration of title declaring the plaintiffs as the absolute owners in possession of the suit schedule properties and for permanent injunction raising various contentions. The same was disputed by the defendants by filing written statement. After contest, the trial Court by the judgment and decree dated 9.4.2013 dismissed the suit with costs. Aggrieved by the said judgment and decree, only first defendant filed RA No.5009/2013 before the III Additional District and Sessions Judge, Mandya, only insofar as the adverse finding recorded against the first defendant. The lower appellate Court considering the entire material on record by the judgment and decree dated 14.11.2014 allowed the appeal as well as the application IA No.1 filed under Order 41 Rule 27 of Code of Civil Procedure, and permitted the appellant-first defendant to produce documentary evidence and the finding of the trial Court on issue Nos.3 and 4, in the judgment and decree made in O.S.192/2006 is set aside. The matter was remanded back to the trial Court with a direction to give further opportunity to the first defendant to adduce her oral and documentary evidence on issues Nos.3 and 4 and dispose of the suit along with O.S.No.192/2006. 3. After remand, during the pendency of O.S.No.151/2006, the plaintiff filed three applications IA No.11 under Order 7 Rule 14 of Code of Civil Procedure to produce documents, IA No.12 under Section 151 of Code of Civil Procedure for reopening the case, IA No.13 under Order 18 Rule 17 of Code of Civil Procedure to recall PW1 for further examination in chief. The said applications were opposed by the second defendant by filing objections. The trial Court considering the applications and objections, by the impugned order dated 27.2.2017 rejected the applications. Hence, the present writ petitions are filed. 4. I have heard the learned counsel for the petitioners. 5. Sri. Rupesh Kumar S., learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the applications filed by the plaintiffs is erroneous, contrary to the material on record. Hence, the present writ petitions are filed. 4. I have heard the learned counsel for the petitioners. 5. Sri. Rupesh Kumar S., learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the applications filed by the plaintiffs is erroneous, contrary to the material on record. He would further contended that the trial Court has not exercised the discretionary power to allow applications even though there is no specific direction from the appellate Court, wherein the case was remanded for further enquiry. The trial Court ought to have given opportunity to the petitioners-plaintiffs to lead further evidence for proper appreciation of the facts and materials to reach legal and logical conclusion in the case on hand. He would further submitted that the documents sought to be produced by the plaintiffs were not available at the time of leading their evidence. Therefore, he sought to set aside the impugned order passed by the trial Court by allowing the present writ petitions. 6. Having heard the learned counsel for the petitioners, it is undisputed fact that the petitioners filed suit for declaration and permanent injunction against the defendants. Defendants denied the contents of plaint averments by filing objections. The trial Court considering the entire material on record by a judgment and decree dated 9.4.2013 dismissed the suit filed by the plaintiffs. The said judgment and decree passed by the trial Court has reached finality insofar as the plaintiffs are concerned. They have not challenged the same. Only first defendant filed appeal in RA No.5009/2013 before the III Additional District and Sessions Judge, Mandya. After hearing both the parties, the appellate Court has allowed the appeal and remanded the matter to the trial Court with a direction to the trial Court to provide an opportunity to the first defendant to adduce her oral and documentary evidence on issue Nos.3 and 4 and dispose of the same along with other suit pending. 7. The trial Court while dismissing the suit by a judgment and decree dated 9.4.2013 held issue No.4 in affirmative and other issues in negative. 7. The trial Court while dismissing the suit by a judgment and decree dated 9.4.2013 held issue No.4 in affirmative and other issues in negative. The lower appellate Court set aside the finding of the trial Court only on issue Nos.3 and 4 and remanded the matter to provide an opportunity to first defendant on issue Nos.3 and 4 and dispose of the suit and it was not a open remand, but a restricted remand on issue Nos.3 and 4 regarding execution of gift deed executed by defendant No.1 in favour of defendant No.2. The findings on other issue by the trial Court has reached finality. The plaintiffs have not challenged the judgment and decree passed by the trial Court. 8. The document sought to be produced by the plaintiffs are not relevant to prove issue Nos.3 and 4. Proving issue Nos.3 and 4 is on defendant Nos.1 and 2 and not on the plaintiffs. Moreover, the findings on other issues (burden of proving which was on the plaintiff) has already been decided by the trial Court and not set aside by the appellate Court. Therefore, there is no need for the plaintiffs to produce the documents and to recall PW1 to mark those documents. 9. The trial Court considering the judgment and decree passed by the lower appellate Court has rejected the applications filed by the petitioners for production of documents, re-open the case and recall PW1 are devoid of merits. The same is in accordance with law. The petitioners have not made out any good ground to interfere with the impugned order passed by the trial Court in exercise of power under Article 227 of the Constitution of India. Accordingly, the petitions are dismissed.