JAGADEESH Vs. SHEKARGOUDA AND ORS.

JUDGEMENT

(1.) HEARD Shri Mahesh Wodeyar, learned counsel appearing for petitioner and Shri S.R. Ambali, learned counsel appearing for respondent No. 1. By impugned order petitioner/plaintiff has not been permitted to lead further evidence and his applications had been rejected, though it was not opposed to by respondent No. 2 herein, no notice is issued to respondent No. 2 in the preset writ petition in W.P. No. 100420 -21/2015 and also in view of fact that notice has been served in W.P. No. 100075 -76/2015 on the counsel appearing for 1st respondent and respondent No. 1 being duly represented, matter is heard and disposed of on merits by consent of learned advocates.

(2.) GRIEVANCE of the petitioner is that suit O.S. No. 29/2010 had been filed for relief of specific performance of agreement of sale dated 15.03.2005 against the defendant and plea had been put forward by plaintiff that out of total sale consideration of Rs. 6,11,000/ - agreed to be paid a sum of Rs. 3,50,000/ - had been paid by way of advance and to prove factum of payment of advance amount, was partly through cheques, applications in question were filed seeking for production of certified copies of cheques issued by plaintiff - bankers and to mark said documents though P.W. 1 and as such, he was sought to be recalled, when matter was at the stage of final arguments. Application to recall D.W.1 for further cross -examination on this aspect also came to be filed. Said applications having been resisted by 1st defendant, Trial Court dismissed these applications on the ground that plaintiff has not made out any justifiable ground to allow them namely to recall P.W.1, production of documents and also to recall D.W.1. It is this order which has been impugned in these writ petitions.

(3.) PER contra, Shri S.R. Ambali, learned counsel appearing for 1st defendant respondent would support the order passed by the Trial Court and contends that plaintiff being fully aware of the fact that he had to prove the payment of advance amount under agreement of sale to 1st defendant did not choose to place said evidence when he was extended the opportunity by Trial Court and only with the intention of protracting the proceedings applications in question came to be filed and even otherwise, when the matter is set down for arguments, plaintiff should not be permitted to tender such evidence to fill up the gaps. Hence, he prays for dismissal of writ petitions. In support of submission he had relied judgment of co -ordinate Bench of this Court in the case of Smt. Boramma v. Boraiah and others reported in : 2014 (3) KCCR 2200.