G NAGARAJU Vs. G T SHIVAPRAKASH

JUDGEMENT

(1.) Petitioner filed a suit for perpetual injunction against the respondents in O.S. No. 86 of 1998 in respect of a shop. Later, In 2001, he filed O.S. No. 329 of 2001 seeking injunction against the respondents in respect of a house. Respondents filed I.A. No. 203 of 2005 seeking joint trial of both the suits. The said petition was dismissed by the trial Court. So, they carried the matter in revision to this Court in C.R.P. No. 2663 of 2005 where the learned Judge of this Court, by his order dated 8-8-2005, ordered joint trial of both the suits. Thereafter, the revision petitioner filed LA. No. 729 of 2005 to eschew the evidence of P.W.1, P.W.2 and D.W. 1 and the chief examination of D.W.2 in O.S. No. 86 of 1998 on the ground that their evidence does not cover the issues that arise for consideration in O.S. No. 329 of 2001. That petition was dismissed by the trial Court by the order under revision.

(2.) The contention of the learned counsel for the revision petitioner is that since the evidence adduced in O.S. No. 86 of 1998 covers the issues in O.S. No. 86 of 1998 only, and does not cover the issues in O.S. No. 329 of 2001 and since this Court ordered joint trial of both suits in C.R.P. No. 2663 of 2005, the evidence already adduced has to be eschewed and fresh evidence has to be recorded.

(3.) Merely because a joint trial of part-heard suit is ordered with another suit which is not yet opened evidence already adduced in the part heard suit need not and cannot be eschewed. In view of the order of this Court clubbing the two suits revision petitioner can file a petition to recall the witnesses already examined to enable them to speak about the facts in the yet to be opened suit. Similarly, respondents also can file petition to recall witnesses already examined. Hence the order dismissing the petition to eschew the evidence already adduced needs no interference.