IMPORTANT POINT
Even after a case is reserved for judgment, case can be reopened for consideration of an application but Court should exercise that power very sparingly.

Sreenivas Harish Kumar, J.—The appellants’ are the legal representatives of the original defendant in O.S. No. 216/2005, on the file of the Principal Senior Civil Judge, Belagavi. The respondent being the plaintiff in the said suit sought specific performance of the agreement dated 21.4.2002 executed by the original defendant. Suffice it to state that in the suit, the plaintiff himself adduced evidence as PW1. Defendants’ counsel cross-examined him. Thereafter, the plaintiff examined another witness, Sadanand Patil as PW2 and the defendants’ counsel did not cross-examine him; even the legal representatives of the defendant (referred to as ‘defendants’ hereafter for convenience) who were brought on record remained absent, and they did not lead evidence from their side also. After the suit was reserved for judgment, the defendants got filed applications for re-opening of the case and recalling PW2 for cross-examination. The trial Judge dismissed these applications and decreed the suit by his judgment and decree dated 18.11.2010.

2. The defendants preferred an appeal RA No. 4/2011 to the District Court, Belagavi. In this appeal, in addition to challenging the trial Court’s decree on merits of the case, they mainly questioned the legality of rejection of their applications filed for re-opening of the case and recalling PW2 for cross-examination. The II Additional District Judge who decided the Appeal, though held that the procedure adopted by the trial Court Judge to reject the said applications without calling for objections from plaintiff was not correct, declined to interfere with the trial Court’s judgment as according to him, the trial Court did give sufficient opportunity to the defendants to cross-examine PW2 and adduce their evidence and that they failed to avail the opportunity given to them. He dismissed the first appeal. Aggrieved by this judgment, the defendants are here before this Court in Second Appeal.

3. This second appeal was admitted for consideration of the following substantial question of law :-

“Whether the First Appellate Court has committed an error in law in not remanding the case in accordance with Order 41 Rule 23 and 23A CPC to the Trial Court having noticed the circumstances under which the defendants’counsel could not cross examine PW-2 and further that the defendants could not adduce evidence?”

4. The trial Court rejected the applications outrightly for the reason that such applications are not maintainable once the case was posted for judgment after conclusion of arguments. The first Appellate Court held that the procedure followed by the trial Court for rejecting the applications was wrong; the applications should have been decided by the trial Court after calling for objections from the plaintiff. But, this observation of the first Appellate Court did not result in appeal being allowed and case remanded to the trial Court, for the Appellate Court having had a look at the various dates of proceeding before the trial Court came to the conclusion that the defendants’ counsel had no health problem on 25.8.2010 and 7.9.2010, the dates when the case was set down for cross-examination of PW2, that as per the medical certificate, the counsel was treated as an outpatient from 10.9.2010 to 30.10.2010 and the ailment he had was hypertension and diabetes which disorder was not so serious unless it crossed certain limits. The first Appellate Court also noticed that the defendants also did notproduce any medical report or lab report to show that the condition of the counsel was so serious. The very fact that he was treated as an outpatient showed that he was not at all seriously ill. Besides these, as regards the conduct of the first appellant, i..e, Smt. Leeladevi, the first Appellate Court commented that she was also a resident of Lathur where her counsel was said to have taken treatment and, therefore, it was highly impossible to believe that each other could not have met. The first Appellate Court al