NANJAPPA Vs. MAIMANNA

JUDGEMENT

(1.) I have heard the petitioners learned advocate at length His principal submission is based on two decisions AIR 2003 Karnataka 148, AIR 2002 SC 559 whereby he contends that the rejection of the application dated 17. 2. 2003 filed by the present petitioner who is the Defendant No. 2 to lead evidence has been rejected and that this would constitute decision of the suit without affording an opportunity to the 2nd defendant to lead evidence. First of all, the facts and circumstances in the two decisions cited before me are different and those principles will not assist the petitioner in this case.

(2.) THE suit is of the year 1980. The learned Trial Judge points out that it is one of the oldest proceedings pending in the court being 23 years old. He also points out that this defendant was originally served in 1979 itself. The petitioners learned advocate submits that at one stage the defendant was wrongly placed exparte and that there were several proceedings in between and that explains the long time lag. The issue is not that, but the simple point is that even the applications made by the Defendant-2 for recalling of the witnesses were rejected by the Trail Court, revisions filed against those orders have also been rejected by the High Court and as the record stands the recalling of the witnesses cannot be done and has assumed finality. The Defendant-2 then contended that he should be permitted to lead evidence. Learned advocate submits that in the interests of justice the Trail Court ought to have allowed this application because otherwise, the Defendant-2 will be deprived of an opportunity of establishing his case. One of the reasons why the application was made only on 17. 2. 2003 is that the earlier CRPs were disposed off by the High Court only on 20. 12. 2002 and the learned advocate submits that it was only after this that the present application was filed for leading evidence. Further, the learned advocate submits that some other writ petition filed by the other side for leading additional evidence was pending and that there was some stay order in the proceeding and that consequently, the application filed for leading evidence is not a belated one.

(3.) TO my mind, if these sort of games are permitted, this suit will not be disposed off, atleast for another 20 years because there is sufficient potential for each party to ask for reopening of the evidence and this process will go on indefinitely. The law is very clear to the effect that if a party desires to participate in the proceeding that this has got to be done in good time and at the proper time and no kind of excuse can permit for a 23 year old litigation which has reached stage of arguments to be re-opened for further evidence. The submission canvassed is that injustice will be done to the Defendant No. 2 I am unable to agree with this submission for the simple reason that the law is very clear to the effect that a party to a proceeding who has ample opportunity has got to avail of this opportunity in good time where that is not done and where the litigation is elongated and where the applications for evidence are made after the case is fixed for arguments, the law does not prescribe re-opening and in view of this legal bar no interference is called for with the order passed by the Trail Court. The CRP fails and stands dismissed.