Shivayya vs Thimmakka And Ors
2022 Latest Caselaw 10427 Kant

                              1           W.P.No.201609/2022


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 6TH DAY OF JULY, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

       WRIT PETITION NO.201609/2022 (GM-CPC)


BETWEEN:

Shivayya S/o Alkur Narasappa,
Age : 63 year, Occ: Rtd. Employee of
Health Department,
R/ H.No.9-10-89, Maddipet,
Raichur - 584 102.
                                                  ... Petitioner
(By Sri Kadloor Satyanarayanacharya, Advocate)


AND:

1. Thimmakka W/o Lalappa,
   Age : Major, Occ: Not known
   R/o Station Area, Raichur - 584 101.

2. Krishnaveni D/o Tatabbai,
   Age : Major, Occ : Household,
   R/o Manslapur Village,
   Tq. & Dist : Raichur - 584 134.

3. Shakira Banu W/o Hafiz Mohammed Dawood Ibrahim,
   Age : Major, Occ : Homemaker,
   R/o H.No.1-4-88/109/A, Ramalingeshwar Layout,
   Raichur - 584 101.
                                            ... Respondents
(By Sri G.B.Yadav & Sri Vishwakarmaraj Nayak, Advocates)
                               2          W.P.No.201609/2022


      This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to issue a writ of certiorari
and aside the common order passed on I.A.No.23 to 25
dated 21.06.2022 in O.S.No.263/2014 at Annexure-L by
learned Addl. Civil Judge and JMFC-III, Raichur by allowing
this writ petition with a direction to reconsider IA Nos.23 to
25 or to pass any other suitable orders the court deems fit, in
the facts and circumstances of the case in hand, in the
interest of justice.

      This petition coming on for Preliminary Hearing this
day, the Court made the following:

                        ORDER

The petitioner has filed the instant writ petition

with a prayer to quash the order at Annexure-L dated

21.06.2022 passed by the learned Additional Civil Judge

and JMFC-III, Raichur on IAs-23 to 25 in OS

No.263/2014.

2. Heard the learned counsel for the petitioner

as well as the learned counsel appearing for the

caveator - respondent No.3.

3. Brief facts of the case as revealed from the

records that would be necessary for the purpose of

disposal of this writ petition are that the petitioner

herein had filed O.S.No.263/2014 before the Court of

Addl. Civil Judge and JMFC-III, Raichur against the

respondents seeking for the relief of declaration that he

is the absolute owner of the suit property having

purchased the same from one Smt.Narasamma under a

registered sale deed dated 19.02.1994. In the said suit

the defendants have filed their written statements

denying the plaint averments and the defendant No.3

has set up a title for himself on the ground that he has

purchased the suit property from the defendant No.2.

The Trial Court based on the rival pleadings has farmed

the issues and recording of evidence in the suit was

completed and even the final arguments were addressed

before the Trial Court on the merits of the case. At this

stage, the present applications IAs-23 to 25 were filed

by the plaintiff with a prayer to reopen the case, recall

PW.1 and also permit the plaintiff to produce additional

documents. The said applications were opposed by the

defendants and the Trial Court vide the order impugned

has dismissed the said applications. Being aggrieved by

the same, the petitioner is before this Court.

4. Learned counsel for the petitioner submits

that the additional documents were not in the

possession of the petitioner and after making necessary

applications under the Right to Information Act before

the Competent Authority the same were obtained and

thereafterwards the petitioner intended to produce the

same before the Trial Court. He submits that if the

applications are allowed no hardship or injury would be

caused to the defendants and on the other hand, if the

same are not allowed, the plaintiff's case is likely to be

prejudiced.

5. Learned counsel appearing for caveator -

respondent No.3 submits that the suit is at the stage of

final arguments and both the parties have already

submitted their arguments and at this stage, the

applications are filed only with an intention to fill-up the

lacuna in the plaintiff's case. He has relied upon the

judgment of the Hon'ble Supreme Court in the case of

Bagai Construction vs. Gupta Building Material

Stores1 and submits that having regard to the law laid

down in the said case, the applications filed by the

petitioner in the present case are liable to be dismissed.

6. I have carefully considered the arguments

addressed by the learned counsel appearing for the

parties and also perused the material on record.

7. It is not in dispute that the suit is at the

stage of arguments before the Trial Court and the

parties have completed their arguments and even

written arguments have been filed. At this stage, the

applications IAs-23 to 25 have been filed by the plaintiff

before the Trial Court. A perusal of the said applications

would go to show that absolutely no reasons are

(2013) 14 SCC

assigned in the affidavits filed in support of the

applications for not having produced the documents

earlier which the plaintiff now intends to produce.

8. The Hon'ble Supreme Court in Bagai

Construction's case supra has held that the applications

under Order XVIII Rule 17 CPC to recall the witnesses

should not be allowed and it is not meant to fill up

omissions in the already adduced evidence. It has been

also observed that witnesses cannot be recalled and re-

examined merely on the ground that no prejudice would

be caused to the other side and the power under the

said provision of law should not be used in a routine

manner. The Hon'ble Supreme Court has also observed

that the applications can be allowed if the same is bona

fide and for earlier non-production of documents there

should be a valid reason.

9. In the case on hand, a reading of the

affidavits filed in support of the applications would go to

show that absolutely no reason has been given by the

plaintiff for non-production of the documents at the

earliest stage of the suit. Under the circumstances, I am

of the view that the Trial Court was fully justified in

dismissing the applications.

10. I find no illegality or irregularity in the order

passed by the Trial Court. Accordingly, I decline to

entertain the writ petition. Petition is, therefore,

dismissed.

Sd/-

JUDGE

sn/kk