ORDER

The petitioner / plaintiff has filed this petition seeking prayer to quash the order dated 05.12.2023 passed by the II Addl. Sr. Civil Judge and JMFC, Tumakuru in O.S.No.15/2016 whereby an application filed by the plaintiff under Order 16 Rules 1 and 2 read with Section 15 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Act') was rejected.

2. Heard Sri.Omkaresha, learned counsel for the petitioner. Though notice is served on the respondents, they remained absent.

3. Learned counsel for the petitioner submits that the petitioner who is the plaintiff before the Trial Court has filed suit for specific performance of the contract seeking direction to the defendants to execute the sale deed pursuant to the agreement of sale dated 07.01.2013. It is submitted that the defendants have entered appearance, filed written statement and sought for dismissal of the suit. The Trial Court has framed issues and proceeded to conduct the trial. It is submitted that the plaintiff has been examined as PW-1 and thereafter the defendants also have adduced evidence. During the pandemic, the petitioner could not adduce evidence of all the witnesses. Hence, he has moved an application under Order 16 Rules 1 and 2 of the CPC seeking permission to re-open the case and to lead evidence of other witnesses. The said application was rejected by the Trial Court on the ground that the said application is filed belatedly when the suit is posted for arguments. It is submitted that the petitioner intends to adduce evidence of a person who is witness to the agreement of sale. Hence, the evidence of the said witness is important to decide the issue in the pending suit. It is also submitted that if the application is not allowed, the petitioner would be put to great hardship and irreparable loss. However, if the application is allowed and petitioner is permitted to lead evidence of other witnesses, no hardship would be caused to the otherside.

Therefore, he seeks to allow the petition.

4. I have heard the learned counsel for the petitioner and perused the material available on record.

5. It is not in dispute that the petitioner has filed an application seeking permission to lead evidence. The said application is filed at a belated stage when the matter is posted for arguments. However, the averments made in the accompanying affidavit of the application indicate that the examination of the witnesses is necessary to adjudicate the issue involved in the suit. Taking note of the averments of the affidavit and keeping in mind the fact that the petitioner would be put to prejudice if the application is not allowed, even though the application is filed at the belated stage, the same is required to be allowed in the interest of justice by imposing a cost of Rs.2,000/- to be payable to the defendants.

6. For the aforementioned reasons, I proceed to pass the following:

ORDER

The petition is allowed.

Impugned order dated 05.12.2023 passed by the II Addl.

Sr. Civil Judge and JMFC, Tumakuru in O.S.No.15/2016 on an application filed by the plaintiff under Order 16 Rules 1 and 2 read with Section 151 of the CPC is set aside. Consequently, the application filed under Order 16 Rules 1 and 2 read with Section 151 of the CPC is allowed subject to payment of cost of Rs.2,000/- payable to the defendants by the petitioner.

The petitioner / plaintiff is permitted to adduce the evidence of his witnesses on the next date of hearing.