REHMAN HUSSAIN Vs. ALTHAF HUSSAIN

JUDGEMENT

(1.) THE Principal Civil judge (Jr. Dn.) and JMFC, Mudigere, under section 113 of Code of Civil Procedure (CPC)has referred the question whether LA. No. 4 filed by the plaintiff in O. S. No. 1 of 2002, under Rule 60 (2) of the Karnataka Civil rules of Practice, 1967, for short, KCRP, read with Section 151, CPC seeking permission of the Court to file list of witnesses after 15 days from the date of settlement of issues is maintainable and whether Rule 60 (2) KCRP is violative of Order XVI, Rule 1, cpc, to this Court for opinfon. On receipt of the reference, the office of this Court has registered it as CRC No. 4 of 2002 and as directed by the Honble Chief Justice, the same is placed before this Bench for opinion.

(2.) THE background facts may be noted first in brief and they are as follows : The plaintiff has instituted a suit, O. S. No. 1 of 2002 in the Court below for permanent injunction restraining the defendants from interfering with the suit schedule property. The defendants having put in appearance have filed their written statement. The Court below framed the issues on 16-7-2002 and posted the case on 30-7-2002 for filing list of witnesses as envisaged under Order XVI, rule 1, CPC. On 30-7-2002 on behalf of the plaintiff, LA. No. 4 was filed under Rule 60 (2)KCRP read with Section 151, CPC seeking permission of the Court to file list of witnesses on the next date of hearing. In the affidavit filed in support of the application, it is stated that the plaintiff could not attend to the Court on earlier occasions due to his ill-health and, therefore, could not file list of witnesses within the stipulated time of 15 days from the date of settlement of issues. The said LA. No. 4 was opposed by the defendants by filing a counter-affidavit and it was contended by the defendants that rule 60 (2) of KCRP is ultra vires Order XVI, rule 1, CPC and, therefore, the Court has no jurisdiction to extend the time beyond 15 days after the date of settlement of issues.

(3.) THE Court below having considered the rival contentions put forth before it by the plaintiff and defendants and having thought that in terms of Order XVI, Rule 1, cpc, there is no scope for granting more time to file list of witnesses, has referred the questions noticed above for opinion of this Court under Section 113, CPC.