AJITKUMAR DEVENDRAPPA KODACHWAD Vs. CHANDRAKANT AND ORS.

JUDGEMENT

(1.) 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.