ORDER : The petitioner/plaintiff in OS No.173/2006 on the file of the 1st Addl. Senior Civil Judge, Hubballi is before this Court assailing the order dated 4.2.2017 by which IA Nos.11 to 13 are rejected which were filed for reopening the case, issuance of witness summons and for summoning the documents respectively. 2. Heard the learned counsel for the petitioner and learned counsel for the respondents No.1 and 3. 3. Learned counsel for the petitioner would submit that the suit is one for partition and separate possession of the suit schedule properties. The defendants failed to file their written statement and to contest their suit. Hence, the suit came to be decreed by judgment and decree dated 2.4.2011. The defendants aggrieved by the said judgment and decree, filed an appeal in RA No.52/2014 before the first appellate Court. The first appellate Court allowed the appeal by judgment dated 3.4.2016 and remanded the matter with a direction to the trial Court to dispose of the suit afresh by giving an opportunity for cross-examination of PW1 and also to adduce evidence on their behalf by the defendants. While disposing of the appeal, the first appellate Court had fixed the time frame to dispose of the suit. On remand, the defendants filed their written statement and took up the contention that there is a Will and relying on the said Will, they contended that the plaintiff is not entitled for any share in the suit schedule properties. Therefore, learned counsel for the petitioner would submit that it had become necessary for the plaintiff to reopen the case, to examine the witness by taking out witness summons and to produce the documents to prove their case. The said applications are dismissed by the trial Court on the ground that even after giving sufficient opportunity to lead evidence, the same has not been utilized by the plaintiff. Further it is observed that the burden is on the defendants to prove their case, as such, refused to allow the said applications. 4. Per contra, learned counsel for the respondents 1 and 3 submits that the first appellate Court after setting aside the earlier judgment and decree, remanded the matter to the trial Court for fresh disposal. Hence, he submits that the plaintiff’s applications may be allowed imposing cost and fixing time frame for disposal of the suit. 5. 4. Per contra, learned counsel for the respondents 1 and 3 submits that the first appellate Court after setting aside the earlier judgment and decree, remanded the matter to the trial Court for fresh disposal. Hence, he submits that the plaintiff’s applications may be allowed imposing cost and fixing time frame for disposal of the suit. 5. Having heard the learned counsel for the parties and on perusal of the material on record, I am of the view that the petitioner is entitled for the relief sought in the present writ petitions and for allowing the applications (IA Nos.11 to 13) filed in OS No.173/2006 for the following reasons: 6. It is an admitted fact that in the instant case, the defendants had not filed their written statement and had not contested the suit. The suit came to be decreed by judgment and decree dated 2.4.2011 which was challenged in RA No.52/2014 before the first appellate Court by the defendants. The first appellate Court set-aside the judgment and decree dated 2.4.2011 and remanded the matter for fresh disposal by giving an opportunity to the defendants to file their written statement and to cross-examine the PW1. It is also an admitted fact that on remand, the defendants filed their written statement and relying upon the Will, contended that the plaintiff is not entitled for any share in the suit schedule properties. In that circumstance, it had become necessary for the plaintiff to examine the witnesses in support of his case and to produce certain documents. In that background, the applications (IA Nos.11 to 13) were filed to reopen the case, to issue witness summons and to summon certain documents. 7. The learned counsel for the petitioner submits that after remand, the plaintiff has not been given an opportunity to examine himself or any witnesses. In that circumstance, the plaintiff/petitioner had filed the above said three applications. In the facts and circumstances of the case, I am of the view that the trial Court committed an error in not providing an opportunity to the plaintiff to examine the witnesses and to summon the documents, particularly when the defendants were permitted to file their written statement subsequent to remand by the first appellate Court. Thus, the writ petitions are allowed. The order dated 4.2.2017 passed on IA Nos.11 to 13 in OS No.173/2006 on the file of the I Addl. Thus, the writ petitions are allowed. The order dated 4.2.2017 passed on IA Nos.11 to 13 in OS No.173/2006 on the file of the I Addl. Senior Civil Judge, Hubballi is set-aside. IA Nos.11 to 13 are allowed. The case is re-opened. The trial Court is directed to issue witness summons as sought in IA No.12 and also to issue summons to produce the documents as sought in IA No.13 on payment of costs of Rs.5000/-to the respondents/defendants. The cost shall be paid by the plaintiff on the next date of hearing before the trial Court. It is made clear that in the guise of examining the witnesses, the plaintiff shall not drag on the proceedings.