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Karnataka High Court · body

2019 DIGILAW 914 (KAR)

P. v. Shivarama Reddy VS K. Nagaraj

2019-04-16

B.VEERAPPA

body2019
ORDER : The defendants-petitioners filed these writ petitions against the order dated 12.12.2017 on I.A.No.18 under Section 151 of CPC wherein O.S.No.1125/2015 connected with O.S.Nos.1127/2005 and 1129/2005 as per Annexure-N rejecting the application for vacating exparte temporary injunction and to direct the trial Court to consider I.A.Nos.1 and 3 filed under Order 39 Rule 1 and 2 of Code of Civil Procedure and Order 39 Rule 4 of Code of Civil Procedure. 2. In the connected writ petitions the defendants-petitioners sought to quash the impugned order dated 06.03.2018 on I.A.Nos.1/2018 and 2/2018 in O.S.No.1125/2005 connected with O.S.Nos.1127/2005 and 1129/2005 as per Annexure-J allowing the applications filed in I.A.No.1/2018 under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure to recall PW 1 for adducing further evidence and I.A.No.2/2018 under Order 7 Rule 14(3) read with Section 151 of Code of Civil Procedure seeking permission to produce the documents. 3. The respondents who are the plaintiffs before the trial Court filed suit in O.S.No.1125/2005 for permanent injunction against the present petitioners-defendants before the trial Court contended that they are the owners of the suit schedule property and defendant No.3 filed written statement denied plaint averments contending that he is the owner of the properties in question and sought for dismissal of the suit. The trial Court by an order dated 07.11.2009 considering the statement made by the learned counsel appearing for the plaintiff and defendant No.1 interim order was extended until further orders and posted the matter for issues, there after the defendants filed application under Section 151 of Code of Civil Procedure for vacating exparte temporary injunction i.e., to consider I.A.Nos.1 and 3, the trial Court considering the applications and objections by an impugned order dated 12.12.2017 rejected the application filed by the defendants. Hence, present writ petition No.5996/2018 and writ petition Nos.3114-631147/2018 are filed. 4. When the matter was posted for further evidence of plaintiffs, at that stage the plaintiffs filed I.A.Nos.1/2018 and 2/2018 under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure to recall PW1 for adducing further evidence and seeking permission to produce the documents. The trial Court considering the applications and objections by an order dated 06.03.2018 allowed both the applications with a cost of Rs.300/- each. Hence, the writ petition No.23458/2018 and No.26124/2018 are filed. 5. The trial Court considering the applications and objections by an order dated 06.03.2018 allowed both the applications with a cost of Rs.300/- each. Hence, the writ petition No.23458/2018 and No.26124/2018 are filed. 5. I have heard the learned counsel for the parties to the lis. 6. Sri.Chandrashekara Reddy.M.V, learned counsel for the petitioners in both the writ petitions contended that the impugned order passed by the trial Court rejecting the application filed by the defendants for vacating exparte temporary injunction is erroneous and contrary to law and he further contended that since the defendants filed objections to the said I.A. and filed written statement, it is the duty of the trial Court to consider and pass appropriate orders on I.A, the said has not been done, the trial Court erroneously rejected the application filed for vacating exparte temporary injunction. Therefore, he sought to allow writ petition No.5996/2018 and writ petition Nos.31146-31147/2018. He further contended that when the matter was posted for further evidence, at that stage the plaintiffs filed applications for recall PW1 for adducing further evidence and seeking permission to produce the documents, the trial Court ignoring the fact that the suit was filed in the year 2005 and applications are filed in the year 2018 allowed the applications, the applications filed is highly belated and the plaintiffs have not proceeded the case, the trial Court ought to have rejected the applications. Therefore, he sought to allow the writ petition No.23458/2018 and No.26124/2018. 7. Per contra, Sri.P.V.Chandrashekar, learned counsel for the caveatorrespondent Nos.1 and 2 sought to justify the impugned order passed by the trial Court and contended that at the first instance on 07.11.2009 the trial Court extended the interim order until further orders in view of the consent given by both the plaintiffs and defendant No.1 question of vacating would not arise and the suit was filed in the year 2005, there after several adjournments the applications came to be filed by the defendants for vacating exparte temporary injunction and to consider I.A.Nos.1 and 3 is not permissible. Therefore, he sought for dismissal of the writ petition No.5996/2018 and writ petition Nos.31146-31147/2018. He would further contend that when the matter was posted for further evidence of the plaintiffs at that stage plaintiffs filed applications for permission to recall PW1 for adducing further evidence and to produce the documents. Therefore, he sought for dismissal of the writ petition No.5996/2018 and writ petition Nos.31146-31147/2018. He would further contend that when the matter was posted for further evidence of the plaintiffs at that stage plaintiffs filed applications for permission to recall PW1 for adducing further evidence and to produce the documents. The trial Court rightly allowed both the applications, no prejudice will be caused to the defendants by allowing the applications. Therefore, he sought to dismiss the writ petitions Nos.23458/2018 and No.26124/2018. 8. Having heard the learned counsel for the parties, it is an undisputed fact that respondent Nos.1 and 2 are the plaintiffs before the trial Court filed suit for permanent injunction contending that they are the owners of the suit schedule property and the same is disputed by the defendants by filing written statement. It is also not in dispute that the trial Court by an order dated 07.11.2009 considering the statement made by the learned counsel for the plaintiffs and defendant No.1 interim order was extended until further orders and posted the matter for issues. Once the learned counsel for both the parties gave a consent for extension of interim order, in all fairness the plaintiffs and defendants proceeded with the case, since the suit was filed in the year 2005 inspite of that defendants filed application for vacating exparte temporary injunction and to direct the trial Court to consider I.A.Nos.1 and 3, since interim order was extended until further orders at the consent of parties subsequently application filed for vacating is not maintainable. Further, the interim order granted to maintain status quo between the parties dated 07.11.2009 passed by the learned trial Court Judge by the consent of both the parties is extended until further orders. The trial Court considering the applications and objections rightly rejected the applications filed by the defendants same in accordance with law. 9. The Petitioners have not made out any good ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India. Accordingly, writ petition No.5996/2018 and writ petition Nos.3114631147/2018 are dismissed. 10. The trial Court considering the applications and objections rightly rejected the applications filed by the defendants same in accordance with law. 9. The Petitioners have not made out any good ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India. Accordingly, writ petition No.5996/2018 and writ petition Nos.3114631147/2018 are dismissed. 10. It is also not in dispute that when the matter was posted for further evidence of plaintiffs, at that stage the plaintiffs filed two applications for I.A.No.1/2018 under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure to recall PW 1 for adducing further evidence and I.A.No.2/2018 under Order 7 Rule 14(3) read with Section 151 of Code of Civil Procedure seeking permission to produce the documents. The trial Court considering the applications and objections, has recorded a finding that there is a no serious dispute with regard to the possession of the suit schedule property by the parties and now that the plaintiff has sought to produce additional document, the trial Court is of the considered opinion that the present applications hold merit. It is a rule of evidence that the parties must produce best evidence. The Court has to give sufficient opportunities to the parties to produce the best evidence on their behalf. In this view, the trial Court exercise its discretion in allowing the applications. Further, if the present applications are allowed, the defendants will not be put to hardship because they will be having an opportunity to cross examine PW1. The credibility of the documents can be tested by the touchstone of evidence during the course of cross examination and appreciation of the evidence. Therefore, the trial Court allowed the applications with a cost of Rs.300/- each. 11. Since the rights of the parties are involved in respect of immovable property, the plaintiffs are given an opportunity to produce documents and for adducing further evidence of PW1, no prejudice will be caused to the case of the defendants, ultimately it is for the plaintiffs who have come before this Court to establish their case to grant relief of permanent injunction based on the oral and documentary evidence produced by both the parties. 12. 12. In view of the above, the impugned order passed by the trial Court allowing the applications I.A.Nos.1/2018 and 2/2018 are just and proper, petitioners have not made any good ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India. Hence, the writ petition No.23458/2018 and No.26124/2018 are dismissed. 13. It is also not in dispute that the suit have been filed in the year 2005 and we are in the year 2019, there is more than 14 years, it is high time for both the parties to the lis and the learned counsel to exhibit their institutional responsibility and the trial Court is directed to expedite the disposal of the suit itself subject to cooperation of both the parties.