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2019 Supreme(Kar) 1548
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ALOK ARADHE, J.
Smt. Periamma @ Darga Peeranamma Since dead by her LRs. Noorunnisa – Petitioner
Versus
The Karnataka State Board of Wakfs Rep. by its Chairman – Respondent
Civil Revision Petition Nos. 48, 49, 353 of 2018
Decided On : 16-01-2019
Advocate Appeared:
For the Petitioner: Mr. Arvind Sharma.
For the Respondents: Mr. Mohammed Tippu Sultan, Mr. P.S. Malipatil.
Headnote:
Code of Civil Procedure, 1908 - Section 151 - Rule 17 - Order XVIII - Suit property – Cross examine Defendant Witness - WAKF Act, 1995 - Section 83 - Petitioner has assailed validity of order by which application filed by petitioner for amendment of plaint has been rejected as barred by limitation - In petitioner has assailed validity of order passed by WAKF Tribunal by which application filed by petitioner Order Rule read with Code of Civil Procedure hereinafter referred to as Code’ for short for recalling Defendant Witness for cross examination has been dismissed - Petitioner has assailed validity of order – Held, So far as order is concerned Tribunal has rejected application filed by petitioner Order Code on ground that same was barred by res judicator as earlier application was filed - Tribunal ought to have appreciated that after rejection of application filed by petitioner on aforesaid date defendant had adduced evidence and had produced fresh evidence in form of documents - Therefore it was necessary for petitioner to cross examine Defendant Witness in view of subsequent events application filed by petitioner Order Code could not have been dismissed as barred by res judicator - In case respondents are unable to produce aforesaid witness before Tribunal shall issue summons to aforesaid witness for his appearance before Tribunal - In result aforesaid application is also allowed - Petitioner has challenged rejection of his application Order Code by an order ground that original petitioner was uneducated and used to put her thumb impression and however in documents - Exhibits signature of original plaintiff appears - Therefore petitioner had sought reference to expert opinion from Forensic Science Laboratory Bangalore with admitted thumb impression of original petitioner on Exhibit - However aforesaid application has been rejected by Tribunal on ground of delay - Petition disposed
ORDER :
1. Since these petitions under Section 83 (9) of the WAKF Act, 1995 arise from orders passed by the WAKF Tribunal (hereinafter referred to as ‘the Tribunal’ for short) in the same proceeding, they were heard analogously and are decided by this common order.
2. In CRP No. 48/2018, the petitioner has assailed the validity of the order dated 06.01.2018 by which application filed by the petitioner for amendment of the plaint has been rejected as barred by limitation. In CRP No. 49/2018, the petitioner has assailed the validity of the order dated 21.11.2017 passed by the WAKF Tribunal, by which the application filed by the petitioner under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) for recalling Defendant Witness No. 1 for cross-examination has been dismissed. In CRP No. 353/2018, the petitioner has assailed the validity of the order dated 31.3.2018, by which application filed by the petitioner for referring the documents Exhibits D3, D9, D10 and D16 to obtain an expert opinion by referring the same to Forensic Science Laboratory, Madivala, Bengaluru has been rejected.
3. Facts giving rise to filing of these petitions briefly stated are that the petitioner filed a suit against the respondents seeking the relief of declaration of title in respect of ‘C’ Schedule properties as well as declaration that Certificate of Registration issued by defendant No. 1 dated 23.06.1980 to the extent of 165 x 700 feet published in the official gazette is null and void. The petitioner has also sought for the relief of permanent injunction against the respondents restraining them from interfering with the possession of the petitioner over the suit property. The suit filed by the petitioner was remanded by this Court in the year 2009. The evidence of the petitioner after remanding was closed in the year 2009. Thereafter, the defendants for a period of four years took adjournments and even till 2017 did not conclude their evidence. On 17.12.2017, the matter was posted for cross-examination of Defendant Witness No. 2. The petitioner filed an application under Order VI Rule 17 of the Code seeking permission of the Trial Court for amendment of the plaint, by which relief of declaration that corrigendum to the registration certificate issued by defendant No. 1 dated 07.05.1990 is illegal and void and is not binding on the plaintiff. The Tribunal, by an order dated 06.01.2018, rejected the aforesaid application on the ground that the same is barred by limitation. The aforesaid matter is subject matter of challenge in CRP No. 48/2018.
4. The petitioner filed an application under Order XVIII Rule 17 of the Code seeking recall of Defendant Witness No. 1 for further cross examination. The aforesaid application was rejected by an order dated 21.11.2017. The aforesaid order has been challenged by the petitioner in CRP No. 49/2018. The petitioner filed an application on 22.03.2018 under Order XXVI Rule 10(a) of the Code to refer the documents Exhibits D3, D9, D10 and D16 to obtain the expert opinion by referring the document to Forensic Science Laboratory, Madivala, Bengaluru. The aforesaid application has been rejected by the Tribunal by order dated 31.03.2018, which has been challenged by the petitioner in CRP No. 353/2018.
5. Learned counsel for the petitioner submitted that in the suit, the defendant No. 3 produced the corrigendum and thereafter the petitioner acquired knowledge of the same and filed the application for amendment on 14.12.2017. The aforesaid application for amendment was necessary for a proper and complete adjudication of the controversy involved in the suit and could not have been dismissed on the ground that the same is barred by limitation. It is further submitted that defendant Nos.1 and 2 have already suffered a decree and they are acting through defendant No. 3. It is also submitted that since defendant No. 3 had adduced evidence and has produced seve
