Karnataka High Court
The State Of Karnataka vs Sri. M. A. Mohamad Sanaulla on 27 October, 2023
Bench: S.G.Pandit
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WP No. 23278 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 23278 OF 2023 (GM-CPC)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA, BENGALURU-560001.
2. THE RANGE FORST OFFICER,
DEVANAHALLI TALUK, DEVANAHALLI,
BENGALURU RURAL DISTRICT, BENGALURU
...PETITIONERS
(BY SRI. KIRAN.V.RON, AAG A/W THEJESH.P, HCGP)
AND:
SRI. M. A. MOHAMAD SANAULLA
S/O K ABDULLA SAHAB, AGED ABOUT 59 YEARS,
WHOLESALE FRUIT MERCHANT,
CHIKKASANNAHALLI VILLAGE,
Digitally signed DEVANAHALLUY TALUK,
by A K
CHANDRIKA BENGALURU DISTRICT, BENGALURU.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI. CHANDAN VAMSHI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TOA) CALL FOR RECORDS.B)
QUASH THE ORDER DATED 30/09/2023 IN APPLICATION NO.
6/2023, 7/2023 AND 8/2023 (ANNEXURE-F, G AND H)
RESPECTIVELY PASSED BY THE HONBLE SENIOR CIVIL JUDGE,
DEVANAHALLI, BENGALURU RURAL DISTRICT AT ANNEXURE-J AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 23278 of 2023
ORDER
Heard Sri. Kiran.V.Ron, learned Additional Advocate
General along with Sri. Thejesh.P., HCGP for the
petitioners and Sri. Udaya Holla, learned Senior Counsel
along with Sri. Chandan Vamshi, learned counsel for the
caveator/respondent. Perused the writ petition papers.
2. The petitioners-State Authorities, plaintiffs in
O.S.No.1424/2006 on the file of the Senior Civil Judge,
Devanahalli, Bengaluru Rural District are before this Court,
aggrieved by the rejection of I.A.Nos.6, 7 and 8/2023 filed
under Section 151 of CPC to reopen the stage of suit to
lead further evidence of PW2; under Order 18 Rule 17 of
CPC; to recall PW.2 to lead further evidence and under
Order 7 Rule 14 of CPC to produce additional documents.
3. Learned AAG would submit that the suit of the
petitioners is to declare that the suit schedule lands and
trees are part and parcel of the Buvanahalli Forest Block in
Devanahalli Taluk and defendant has no manner of right
and title and for consequential injunction. It is submitted
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that the suit was dismissed on 08.03.2012. Against
which, Regular First Appeal No.1287/2012 was filed before
this Court, which was also dismissed by judgment dated
16.04.2021. Against which, Civil Appeal No.5801/2022
was filed before the Hon'ble Supreme Court of India. It is
submitted that the Hon'ble Supreme Court of India by
judgment dated 20.09.2022 set aside the judgment of the
trial Court as well as High Court and remanded the matter
to the trial Court for fresh decision after affording an
opportunity for leading evidence to the appellant, both
documentary and oral and corresponding right of rebuttal
to the respondent to lead oral and documentary evidence.
Further, it was observed that the trial Court to make
endeavour to decide the suit preferably within a year.
4. Learned AAG would further submit that no
doubt after remand, the petitioners-plaintiffs lead their
evidence but when the matter was at the stage of
arguments, the petitioners-plaintiffs filed I.A.Nos.6, 7 and
8/2023 to recall PW.1 for further evidence and also for
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WP No. 23278 of 2023
production of documents. The trial Court without
appreciating as to whether the documents would be
necessary for proper adjudication of dispute between the
parties, only on the ground that time granted by the
Hon'ble Supreme Court of India i.e., one year to dispose of
the suit, nearing completion, dismissed the applications.
Learned AAG submits that those documents are absolutely
necessary for adjudication of lis between the parties. It is
submitted that the suit schedule property is notified forest
under Notification dated 08.01.1921. Thus, learned AAG
would pray for an opportunity to the State to lead further
evidence and to mark the documents. Learned AAG would
undertake that on the fixed date, the State would examine
PW.2 further and mark documents and would commence
argument immediately thereafter.
5. Per contra, learned Senior Counsel Sri. Udaya
Holla on behalf of Sri.Chandan Vamshi, learned counsel for
the respondent would submit that the State has already
lead evidence and there is no necessity to give further
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opportunity to lead evidence. Moreover, he submits that
the suit is of the year 1997 and plaintiff is dragging on the
proceedings, as such he prays for dismissal of the writ
petition. However, he submits that if the State is ready to
go on with the evidence on the date fixed and if the State
completes the evidence on the same day, let an
opportunity be given to the petitioners-plaintiffs.
6. Having considered the submissions of the
learned counsels for the parties and on perusal of the writ
petition papers, I am of the view that State is to be given
an opportunity to lead further evidence on the date fixed
by this Court.
7. Paragraph 20 of the Judgement dated
20.09.2022 in Civil Appeal No.5801/2022 reads as follows:
"20. For the reasons recorded above the
appeal is allowed. The impugned judgment of the
High Court dated 16.04.2021 and that of the Trial
Court dated 08.03.2012 are set aside. The matter
is remanded to the Trial Court for afresh decision
after affording due opportunity of leading evidence
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to the appellant both documentary and oral and
corresponding right of rebuttal to the respondent to
lead oral and documentary evidence. As the suit is
of the year 1997, we expect the Trial Court to
make an endeavor to decide the suit expeditiously
preferably within a period of one year. It goes
without saying that the parties will extend their
cooperation in early disposal of the suit. There shall
however be no order as to costs."
8. While remanding the matter, the Hon'ble Apex
Court observed that the trial Court to make endeavour to
decide the suit expeditiously preferably within a period of
one year. Learned AAG would submit that though the matter
was disposed of on 20.09.2022, the records were received
by the trial Court in December, 2022 and after remand, the
first date of hearing was on 21.01.2023. Therefore, it
cannot be said that the Trial Court has crossed the time
granted by the Hon'ble Supreme Court. In a remanded
suit, fixing certain time for disposal, if applications as
filed in this suit is filed, though the time granted by Higher
Court is nearing completion, such applications are
required to be considered on its merit and Court has a
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duty to examine as to whether such application/s needs to
be allowed taking note of facts and situation of each case.
Only on the ground that time granted by Higher Court is
nearing completion, applications cannot be dismissed.
Courts are meant for doing substantial justice.
9. In the case on hand, I.A under Section 151 of
CPC is filed to re-open the stage to examine PW2 further,
to mark documents. The suit is by State Government
claiming suit schedule property is notified forest land. When
suit involves State claim, Court shall be more cautious.
Power conferred upon the Court under Order XVIII Rule 17
of CPC can be invoked either on applications by parties or
suo motu, but it has to be used in appropriate cases,
sparingly. It is the case of petitioners/plaintiffs that the
documents now sought to be produced and marked through
PW2 by re-calling are documents which were not available
earlier. It is true that suit is set down for judgment.
Normally, when suit is set down for judgment,
application to re-call and further evidence would not be
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entertained. But, Court in appropriate cases can exercise
its discretion to permit re-opening of evidence for further
examination/cross-examination, even when case has been
reserved for judgment (K.K.VELUSAMY VS.
N.PALANISAMY ((2011)11 SCC 275).
10. In the instant case, as the State claims that suit
schedule property is notified forest land and State interest
is involved as against individual interest, I am of the view
that State is to be given one final opportunity to lead
further evidence and mark documents and rebuttal
opportunity to the respondent/defendant. Hence, the
following:
ORDER
(i) Impugned order dated 30.09.2023 on
I.A.Nos.6, 7 and 8/2023 in O.S.No.1424/2006
on the file of the Senior Civil Judge,
Devanahalli, is set aside and consequently,
I.A.Nos.6, 7 and 8/2023 are allowed.
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(ii) The petitioners-plaintiffs shall examine PW.2 on
the next date i.e., on 31.10.2023 and complete
their evidence. The respondent-defendant is
given an opportunity to lead further evidence if
any. Immediately thereafter, the petitioners-
plaintiffs shall commence arguments on the
main suit.
(iii) The trial Court shall endeavour for disposal of
the suit on or before 20.12.2023.
(iv) With the above, writ petition stands disposed
off.
Sd/-
JUDGE
SMJ
