L ESWARRAO Vs. V NAGESHRAO

JUDGEMENT

(1.) THIS revision under Section 115 of the CPC arises from the order dated 17-3-1998 passed by Sri S. M. Shivana Goudar, learned Civil judge (Senior Division), Bellary, who had dismissed the revisionist-petitioner's application under Section 151 for reopening the case of the defendant and to permit him to lead further evidence.

(2.) THE facts of the case in the nutshell are that, as per the orders passed on LA. Nos. 24 and 95 for the examination of the disputed handwriting, a Commissioner was appointed subject to cost of Rs. 1,000/ -. The defendant deposited the initial amount of Rs. 1,000/ -. Thereafter it appears, that he had to deposit a sum of Rs. 2,800/- towards Commissioner's fee, but, that was not deposited. Time passed on and thereafter the Court, it appears, recalled the earlier order as the conditions have not been complied with i. e. , payment of amount. Defendant moved another application LA. No. 25 for reopening of the defendant's case and to permit him to lead further evidence. The Court below opined that averment made in LA. Nos. 24 and 25 are all frivolous and false allegations. It opined that the amount had to be deposited within the tune prescribed, but when the order has not been complied with, the defendant had not been entitled to re-submission. It further opined that applications were not bona fide and intended to protract the litigation or trial and the suit has been pending since 1988 because of the tactics played by the defendant and hence, rejected the application. The Court below also took into consideration that the defendant had already taken two years time to lead his evidence and application LA. No. 25 had been made to protract the litigation and so dismissed the application. Feeling aggrieved from that order, the defendant has come up in revision under section 115 of the CPC.

(3.) I have heard Sri Jayakumar S. Patil, learned Counsel for the revisionist-petitioner. He submitted that if the Court would have allowed the applicant to deposit the money and would have allowed the document to be sent to the handwriting expert for examination and if commissioner would have been appointed as appointed earlier, the interest of justice would have been subserved and the applicant would not have been debarred from producing the evidence of the expert. He submitted that reason given for rejection of the application is not sufficient that it will only amount to delay, really the rejection has the tendency to further delay the proceedings.