IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.7887/2019 (GM-CPC) & WRIT PETITION Nos.9125-126/2019 (GM-CPC) BETWEEN:
Smt. Sowbhagyamma, S/o. Sri. N. Narayan, Aged about 52 years, R/at No.15, 6th Cross, 8th Main Road, K.N. Extension, Yeshawanthapura, Bengaluru – 560 022. ...Petitioner (By Sri. Udhaya Kumar G. Advocate) AND:
Smt. Pillamma, W/o. Gopalappa K.M. Aged about 54 years, R/at No.1177/2, 8th Cross, Maheshwari Nagar, T. Dasarahalli, Bengaluru- 560057.
...Respondent (By Sri. P.M. Siddamallappa, Advocate) These Writ Petitions are filed under Articles 226 and 227 of Constitution of India praying to quash the order dated 23.01.2019 made on I.A. Nos. 11 to 13 in O.S. No.1016/2012 passed by the Court of City Civil Judge (CCH-26) at Bengaluru as per Annexure-A and allow the applications etc.
These writ petitions coming on for Preliminary Hearing this day, the Court made the following:
O R D E R The plaintiff has filed these writ petitions against the order dated 23.01.2019 dismissing the applications I.A. Nos.11 to 13 filed by the plaintiff in O.S. No. 1016/2013 on the file of City Civil Judge, Bengaluru.
2. The plaintiff filed a suit for permanent injunction against the defendant/respondent contended that the plaintiff/petitioner is the absolute owner of the property. The same is disputed by the defendant/respondent. After completion of the evidence of the defendant, the plaintiff filed 3 applications, I.A. No. 11 under Section 151 of Civil Procedure Code (hereinafter referred to as ‘CPC’ for the sake of brevity) for re-open the case of PW1 and I.A. No. 12 under Order XVIII Rule 17 of CPC to recall the evidence of PW1 for further evidence and I.A. No. 13 under Order VII Rule 14 of CPC for production of documents of PW1 and judgment and decree in O.S. No. 8154/2011. It is contended that the said suit came to be dismissed on 14.06.2018. The evidence of the defendant has not been produced in the above said document. Though the defendant has taken several admissions, on the last date of the hearing itself, the defendant evidence was closed. Now, she wants to adduce further evidence to produce the said documents, which are necessary to resolve dispute between the parties. The said application was opposed by the defendant by filing objections. The trial Court after hearing the applications on same day has dismissed the said applications. Hence, the said writ petitions are filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri. Udhaya Kumar G. learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the applications I.A. Nos.11 to 13 is erroneous and contrary to the material on record. He would further contend that the trial Court ought to have allowed the applications filed by the petitioner for production of additional documents or certain deposition and judgment and decree in O.S. No.8154/2011 which will not prejudice to the other side. The impugned order passed by the trial Court cannot be sustained in the eyes of the law. Therefore, he sought for allow the writ petition.
5. Per contra, learned counsel for the respondent vehemently argued and contended that the applications have filed at belated stage and the trial Court has justified in dismissing the applications. He would further contend that in a suit for permanent injunction, the plaintiff has to prove the possession by placing oral and documentary evidence. Plaintiff is attempting to deviate the issue by marking the documents led in the other suit and thereby sought for marking the depositions and judgment in O.S. No.8154/2011, is unsustainable in law and is liable to be dismissed.
6. Having heard the learned counsel for the parties, it is not a disputed fact that the plaintiff filed the suit for permanent injunction in respect of the suit schedule property. The facts in issue involved in this case independently based on the evidence led by parties to the suit. The burden lies on the plaintiff to prove the ownership and possession of the same, based on the oral and documentary evidence on record. It is also not in dispute after completion of the evidence the plaintiff has filed three applications i.e., I.A. No. 11 under Section 151 of Civil Procedure Code for re-open case of PW1 and I.A. No. 12 under Order XVIII Rule 17 of CPC to recall the evidence of PW1 for further evidence and I.A. No. 13 under Order VII Rule 14 of CPC for production of documents of PW1 and to produce certain documents of deposition and judgment and decree of the trial Court in O.S. No. 8154/20111.
7. The learned Judge ought to have allowed the applications and permitted by imposing some cost for delay in filing the applications, instead the learned Judge proceeded to dismiss the applications, mainly on the ground that the plaintiff cannot prove possession of the property through admission made by the defendant, while deciding the I.A., learned Judge ought not to have observed the same. It is ultimately to the plaintiff to prove the possession in the suit of permanent injunction. In the interest of justice to both the parties, the applications filed by the plaintiff have to be allowed by imposing the reasonable cost.
8. In view of the above, the writ petitions are allowed.
The impugned order dated 23.01.2019 made on I.A. Nos. 11 to 13 in O.S. No. 1016/2012 is hereby quashed. I.A. Nos. 11 to 13 are hereby allowed subject to the payment of Rs. 5,000/- payable by the plaintiff to the defendant on the next date of hearing. On payment of cost, the trial Court is directed to receive the documents produced by the petitioner/plaintiff and proceed in accordance with law. The suit is of the year 2012 and we are in the year 2019, the trial court is directed to expedite the suit as early as possible, subject to co-operation of the parties to the lis.
Sd/- JUDGE BVK