Judgment · High Court

(FRI SRI. AMEET KUMAR DESHPANDE, ADA) Afl MYTRABAI W’O P \CH ‘YET MA’ PlEA P21 YMETH 56 YEA IRS. (3CC: HOUSEHOLD WORK 1./ 0 D.. EV.A..IEN :H I PPA.RAGI, TQ: SINDAGI rTOX\T top SHIKARIUJ..ANE. BIJAPUR PINCODE 586101

BHAGYRATF1IBAJ \V/Q RUDRA.PPA •KPJ(HANDAKI AGE: 70 YEARS, OP C HOUSEHOLD WORK R/O SIDDAPUR (K) POST \IALAK4NDEVNRT4 lIlT TQ N DIST: BIJAPUR PI11( ODE ShhiOi KEEPONDENTS (BY SRI. MASV. RYMANA. ALV. EOR SRI SAN CABASA’ A B P11 IL JUIS EC1Z RI 142 SERVED) TEllS MSA * * * EOR REGTIEICATION DEFECTS IN FORM NO. 14 ON 28. 12.2011. BUT, THF• C OIJNSEL FOR THE APPELI ANT HAS NOT COMPEl ED .wI.Irf H THIS c)FFICE OBJECTIONS 1711 ‘IN SIX WE]E:ES, AS P1711 RULE 17 C RAFTER 11171 OF I 11CR C 0UT5T 14iH5 IMS.A C 0NIINC (.7)11 FOR AD 11718 5.31 ON THIS I747 T1iF COtJPT UELPVERET1) THIS FOLLOWING: S JUDGMENT Though the appeal is posted today for admission. with the consent of learned counsel appearing for both the parties, the matter is taken up for final hearing.

2. For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the Court below In the original suit I.e. the 1M respondent as plaintiff, 2nd respondent as defendant No.1 and the appellants as defendant Nos.2 and 3.

Respondent no.1 herein ified O.S.No.56/2005 on the file of the I Addl. Civil Judge (Sr.Dn.), Bijapur, against the 211d respondent and the appellants herein seeking declaration of title and permanent injunction with regard to the property mentioned in the schedule to the plaint therein. In the said original suit, at the stage of evidence after completion of evidence of plaintiff who was examined as PW- 1 on 12.12.2007, as their counsel was not diligent, in other words as the counsel was 4 absent on 2 1.04.2009 the case of the plaintiff was closed and the matter was posted for evidence of defendants. Subsequently, on examination of DW- 1 In chief and on hearing the arguments, the said original suit filed by the plaintiff on the basis of the evidence adduced before the Court below by the respective party was dismissed vide judgment dated 24.08.2009. AggrIeved by the said judgment. the plaintiff preferred RA.No. 172/2009.

In the said R.A.No.172/2009, the plaintlff/ appellant therein chose to file I.A.No.2 seeking to examine two of the attesting witnesses to the will on which she was relying as witnesses In the case and the said l.A. was dismissed vide order dated 01.03.2011 on the file of II Addl. District Judge, Bijapur. However, while disposing of the appeal It was observed that the suit of the plaintiff was dismissed only on the ground that, arieast one of the attesting witnesses to the will as required under law was not examined and hence deemed to remand the case to the Trial Court with a direction to permit the parties to adduce further evidence as detailed in the said order.

Aggrieved by the said orders of remand, the defendant Nos.2 and 3 preferred this appeal Inter alla contending amongst other contentions that the defendant was not diligent in conducting the case and the negligence of an advocate cannot be a ground for receiving additional evidence etc.

Heard the counsel for both the parties. At the outset it is to be seen that under Order XLI Rule 27( 1)(b) of the Code of Civil Procedure, appellant in R.A.No. 172/2009 was entitled to seek additional evidence to be adduced.

However, the learned counsel appearing for appellants herein submits that I.A.No.2 seeking such relief Is dismissed which became conclusive and as such again a similar relief cannot be granted under the guise of disposing of main appeal. In this context. the learned counsel respondent No.1 contended that while passing orders on T.A.No.2. emphasis was that, in the appeal additional evidence cannot be allowed to be adduced. However, the same not preclude the Court from permitting the parties to adduce the additional evidence in their suit.

On perusal of the judgment In paragraph 30 the judgment in appeal, the learned judge has discussed that the additional evidence sought to be adduced by the plaintiff Is relevant and necessary for pronouncing effective judgment.

In the circumstances, it is seen that to meet the ends of equity, plaintiff Is permitted to produce additional evidence in the suit and the remand will not prejudice other parties, as they have also got right to defend themselves. In the circumstances, merely by not ‘7 Impugned ailowing T.A.No.2 filed for producing additional evidence before the Court below, the same does not preclude the parties to adduce additional evidence in the suit by passing such directions while disposing of the main In appeal. Hence, R.A.No.172/2009 under which O.S.No.56/2005 was remanded by the II Addl. District Judge. Bijapur. with a the plaintiff to ifie re-joinder and direction to permit adduce additional evidence and also to cross-examine the DW- I and also by providing an opportunity for defendant to adduce additional evidence, does not call for passed any Interference.

However, by considering the manner In which the proceedings are dealt with through out, since from inception of the suit, time limit will have to be fixed to dispose of the same. Hence, while disposing this appeal learned District Judge, and confirming the order of Bijapur. in R.A.NO.172/2009 dated 22.10.2011, It Is S a$pnpgaqrjopiagwpvipauieaiaipjenapapew amuTIpaasnoamjoasodsjpjqs‘sndvfTg‘(usg) £doajoidTaoaspawpamwagstpuowxjsjowuqsajno sapiosgjo jeadduai‘suooa.qpaoquaiptni& jopasodsp£qataq C I