The court may grant a final chance to a negligent plaintiff to adduce further evidence and cross-examine a witness, subject to payment of costs, to avoid multiplicity of proceedings and protect substantive rights of the parties.

JUDGMENT

1. The plaintiffs in O.S. No. 123/2017 on the file of the Civil Judge and JMFC, Sakaleshpura, have filed this writ petition challenging an order dated 27.01.2020, by which applications filed by plaintiff No.2 to recall PW.2 for further chief-examination and to recall the stage of the suit for further examination of the witnesses and to recall DW.1 for further cross-examination were rejected.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.

3. The suit in O.S.No.123/2017 was filed for perpetual injunction in respect of agricultural land in Sy.Nos.160/1, 160/2 and 160/3 of Hethur Village, Sakaleshpura Taluk. The suit was contested by the defendant, who denied the possession and title of the plaintiffs to the suit property. The suit was set down for trial and when the case was listed for arguments, the plaintiff No.2 filed applications under Section 151 of Code of Civil Procedure, 1908, to reopen the stage of the suit for examination of witnesses for the plaintiff No.2 and to further cross-examine DW.1. The Trial Court held that the plaintiffs were unduly delaying the suit and had filed the applications long after the evidence was concluded. It held that despite granting adequate time, the plaintiffs did not adduce further evidence and the case was listed for evidence of the defendant on 16.08.2019 and on 20.09.2019, DW.1 was fully cross-examined. It noticed that the plaintiff No.2 had filed applications on 30.11.2019 to reopen the case and to recall the stage of the suit for further evidence of plaintiffs' witnesses and to recall DW.1 for further cross-examination. On 13.12.2019, the plaintiff No.2 filed a memo stating that he would not press the applications filed on 30.11.2019. It held that later applications were filed to recall the stage of the suit for further evidence of the plaintiff No.2 and to recall DW.1 for cross-examination, hence rejected the applications. Being aggrieved by the said order, the present writ petition is filed.

4. The learned counsel for the plaintiffs submitted that the suit is filed in the year 2017 and that the plaintiffs had not delayed the suit as by the year 2020, the case was listed for arguments. He submitted that the plaintiff No.2 has filed a list of witness, whose evidence is necessary and therefore, an opportunity be granted to the plaintiff No.2.

5. Per contra, the learned counsel for the defendant submitted that the plaintiffs did not choose to lead further evidence though sufficient opportunity was granted to them. He submitted that DW.1 was fully cross- examined and thereafter, the case was listed for arguments and it is at that stage, the applications are filed, which are neither bonafide nor justified. He relied upon the judgment of the Hon'ble Apex Court in the case of Gayathri vs. M. Girish [ILR 2016 KAR 3341] to contend that the applications to recall the stage of the suit, when it is posted for arguments should be allowed in the rarest of rare cases and should not be allowed in a rigmarole fashion. He submitted that the plaintiff No.2 did not choose to file list of witness at the earliest point in time and is now attempting to fill in the gaps in the cross- examination of PW.1.

6. I have considered the submissions made by the learned counsel for the parties.

7. It is true that the plaintiff No.2 has been negligent in prosecuting the suit in as much as he did not examine any of the witnesses at the earliest point in time. He has also not adduced his evidence by utilizing the opportunity granted. On the contrary, he has allowed the case to move on to the stage of arguments and later has filed the applications. The conduct of the plaintiff No.2 deserves to be deprecated in the strongest terms. However, having regard to the fact that the substantive rights of the parties are involved and in order to avoid multiplicity of proceedings, a final chance has to be granted to the plaintiff No.2 to examine himself and also to cross-examine DW.1, w