H.M. SHIVAPRAKASH Vs. SHARADAMMA

JUDGEMENT

(1.) PETITIONER is the first defendant in O.S. No. 19/2005. Being aggrieved by the order dated 25 -01 -2012 passed on I.A. No. 5 by the II Additional Civil Judge and JMFC (Jr. Dn.), Chitradurga, he has filed this writ petition.

(2.) IN the writ petition, the petitioner has contended that the respondent herein had filed a suit seeking for permanent injunction restraining the defendants from interfering with the suit schedule property and also declaration declaring that the plaintiff is the lawful owner of the suit schedule property. The defendants filed written statement denying the claim made by the plaintiff. The Trial Court after considering the matter decreed the suit filed by the plaintiff. Being aggrieved by the said order, the defendants filed R.A. No. 52/2006 challenging the same on various grounds and also filed an application under Order 41 Rule 27 of CPC praying to permit the appellants to lead additional evidence and to prove their case by summoning the Municipal Authorities and mark the documents as Exs. D10 to D12. The Appellate Court after considering the arguments allowed the appeal and remanded the matter to the Trial Court to accord permission to the appellants to lead additional evidence to prove their case by summoning Municipal authorities as prayed in the application. After remand, the defendants 1 and 2 filed an application I.A. No. 5 under Order 16 Rules 1 and 2 of CPC seeking for condonation of delay in filing the list of witnesses and to allow the said application. The Trial Court by its order impugned in the writ petition dismissed the said application holding that the matter has been remanded only to adduce the additional evidence of Commissioner of CMC, Chitradurga to prove their case. Hence, the list of witnesses cannot be accepted. Being aggrieved by the said order, the first defendant filed this writ petition.

(3.) ON the other hand, learned counsel appearing for the respondent argued in support of the order passed by the Trial Court and contended that it is not open to the petitioner to widen the scope of remand and the lower Appellate Court remanded the matter to prove Ex. D.1 by examining the officials of the Municipality. Hence, the petitioner cannot examine the unconcerned persons to prove Ex. D1 and sought for dismissal of the writ petition.