- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO. 13523 OF 2022 (GM-CPC) BETWEEN: KHAJA GAYASUDDIN KHATEEB SON OF LATE KHAJA ABDUL RAHAMAN, AGED ABOUT 51 YEARS, FORMERLY RESIDENT OF MARNOMIBAIL, SHIVAMOGGA NOW RESIDING AT II CROSS, JAYANAGAR, SHIVAMOGGA-577201. …PETITIONER (BY SRI. P.N. HARISH., ADVOCATE) AND: 1. NISHAD BINTRY S/O SYED MUNIRUDDIN BINTRY (BINTURI) AGED ABOUT 42 YEARS, TANK MOHALLA SHIVAMOGGA-577201. 2. MAHAJABEEN D/O SYED MUNIRUDDIN BINRY (BINTURI) W/O AJIAZZ, AGED ABOUT 47 YEARS R/O TANK MOHALLA SHIVAMOGGA-577201. …RESPONDENTS (BY SRI. HARIKRISHNAN B.R., ADVOCATE FOR R1 & R2.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO - 2 - QUASH THE COMMON ORDER PASSED ON IA NO.9 TO 11 DTD.17.2.2022 BY LEARNED PRINCIPAL CIVIL JUDGE AND JMFC SHIVAMOGGA IN O.S.NO.440/2016 PRODUCED AS PER ANNEXURE-F AND THEREBY ALLOW THE IA NO.9, 10, 11 PRODUCED AS PER ANNEXURE-C, D, E, RESPECTIVELY IN O.S.NO.440/2016 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC SHIVAMOGGA AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This writ petition is filed under Articles 226 and 227 of the Constitution of India seeking to issue writ of certiorari, to quash the common Order dated 17.02.2022 in O.S.No.440/2016, on IA No.9 u/s.151 of CPC, IA No.10 u/O 18 Rule 17 of CPC and IA No.11 u/O.7 Rule 14 of CPC passed by the Principal Civil Judge and JMFC, Shivamogga (hereinafter referred to as ‘the trial Court’ for short). 2. The petitioner herein is the plaintiff before the trial Court and respondent herein is the defendant before the trial Court. 3. The plaintiff has filed IA No.9 u/S.151 of CPC to reopen the case and IA No.10 u/O. 18 Rule 17 r/w 151 of - 3 - CPC to recall PW1 to adduce further evidence and also he has filed IA No.11 u/O. 7 Rule 14 r/w 151 of CPC seeking permission for production of documents by condonation delay. 4. The brief facts reveal that:- The plaintiff has filed suit against the defendant for specific performance of agreement of sale initially before Vacation District Judge in VOS No.48/2016, subsequently remitted to the file of Principal Civil Judge and JMFC, Shivamogga and renumbered as OS No.440/2016. 5. In the present suit, the case of the petitioner is that the respondent’s father late Syed Muniruddin Bintry had agreed to sell the vacant sites and accordingly executed an agreement of sale in favour of the petitioner’s father late Khaja Abdul Rehaman, and after receipt of the entire sale consideration, delivered possession of the property and on the very same day executed a General Power of Attorney in favour of the petitioner; however, despite repeated requests, the respondents failed to - 4 - execute the sale deed, thereby compelling the petitioner to institute the present suit. 6. The respondents entered appearance and filed written statement, specifically denying the execution of the agreement of sale and alleging creation of the same by the petitioner for his convenience. Both parties adduced evidence, and when the matter was posted for arguments, the petitioner noticed non-production of certain survey records relating to R.S.No.179/4 and, having obtained the same, sought their production by filing IA No. 9 under Section 151 CPC, IA No. 10 under Order XVIII Rule 17 CPC and IA No. 11 under Order VII Rule 14 CPC. 7. The defendants filed separate objections to all the IAs contending that the applications were not maintainable, being filed only after conclusion of arguments, and that the plaintiff, by relying on created documents, was attempting to fill up lacunae; it was further contended that the alleged land conversion itself is fabricated, that the documents are public in nature which could have been produced earlier with due diligence, and - 5 - that the applications were filed only to drag on the proceedings. Upon consideration, trial Court finds merit in the objections and is of the view that the petitioner had ample opportunity to produce the said documents during trial and has failed to show due diligence, and that the belated attempt to introduce the documents at the stage of arguments cannot be permitted; accordingly, IA Nos.9 to 11 was rejected. 8. Further it is the case of the defendant that that the documents sought to be produced by the petitioner include certified copies of the Akaar Bandh extract, survey sketch, pucca book extract, alienation survey sketch relating to R.S.No.179/4, 179 and 179/2 of Mandli village, mutation register extract, notice dated 10.03.2014 issued by the Deputy Commissioner’s office, as well as receipts evidencing deposit of development fee, water supply fee and Katha transfer fee of Rs.500/- with the City Corporation, Shivamogga, all of which are certified and public documents which were supposed to produce earlier with due diligence. - 6 - 9. The trial Court after hearing the parties observed that the plaintiff sought to produce certain documents at a belated stage, after conclusion of arguments by the defendants, with the intention of filling up the lacunae pointed out by the defendants. Though the plaintiff contended that the said documents are public documents and that the Court may take judicial notice of the same, the Court held that such production at the stage of argument cannot be permitted. 10. It is well settled that under Order XVIII Rule 17 of CPC, the Court has power to recall a witness at any stage either suo motu or on an application filed by parties. However, in the case of Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate reported in (2009) 4 SCC 410, the Apex Court held that such power is not meant to fill up lacunae in the evidence but only to clear ambiguity in the testimony already recorded. Similarly, in the case of K.K. Velusamy v. N. Palanisamy reported in (2011) 11 SCC 275, it has been reiterated that the said provision is to be used sparingly and primarily to enable - 7 - the Court to clarify any doubts, not to allow parties to adduce fresh evidence or omissions which could have been presented earlier. 11. In the light of the principle laid down by the Apex Court, the trial Court finds that since the applications are filed at the stage of reply arguments in a matter pending from 2016, the plaintiff cannot be permitted to overcome the shortcomings pointed out by the defendants by producing additional documents. Consequently, IAs IX, X and XI filed by the plaintiff were dismissed. 12. It is contended by the learned counsel appearing for the petitioner that the learned trial Court erred in rejecting the petitioner’s applications for production of additional documents despite a satisfactory explanation for the delay. The trial Court wrongly emphasized on technicalities rather than the importance and relevancy of the documents, which are certified copies and public documents. Permitting their production was necessary to ensure full and fair adjudication, avoid - 8 - multiplicity of proceedings, and bring the litigation to a just conclusion. 13. Further, it is contended that the trial Court failed to apply its discretion judiciously and did not assign proper reasons while rejecting the applications. It merely narrated precedents of the Apex Court without addressing their applicability to the present case, and erroneously held that the petitioner was attempting to fill lacunae. In reality, the petitioner only sought to reopen the case and recall himself for marking documents relevant to establish his claim regarding conversion of sites in R.S.No.179/4. The trial Court ought to have taken a liberal view of the delay and the stage of the suit in order to secure substantial justice rather than defeating the petitioner’s case. 14. The defendants therein have filed their statement of objections to I.As.No.9, 10 and 11, contending that all three applications filed by the plaintiff under Section 151 of CPC, Order XVIII Rule 17 read with Section 151 of CPC, and Order VII Rule 14 read with - 9 - Section 151 of CPC, respectively, are not maintainable either in law or on facts and are highly belated, having been filed after the completion of arguments on merits. It is specifically urged that the plaintiff is attempting to patch up lacunae pointed out during the course of arguments by creating or fabricating documents and seeking to reopen the case for adducing additional evidence. The allegations regarding conversion of land are categorically denied as false. 15. The defendants therein further submit that the documents now sought to be produced are public documents, easily obtainable from concerned authorities, and the plaintiff had ample opportunity to produce them at the stage of evidence but deliberately failed to do so. The applications are alleged to be frivolous, intended to delay proceedings, and lacking proper justification or explanation for the failure to produce the documents earlier. 16. Heard learned counsel appearing on either side. - 10 - 17. The counsel for the petitioner has filed a memo dated 27.07.2022 stating that the petitioner/plaintiff only intends to mark the documents sought to be produced without leading any further oral evidence apart from marking the documents as exhibits. 18. The counsel for the respondent submits that he has no objection to record the memo. 19. Memo is taken on record. 20. In view of the Memo dated 27.07.2022, this Petition is disposed of with a direction to the trial Court that relating to survey at the time of conversion of the land, and demarking the suit site by Resurvey No.179/2024 to mark the documents without leading any further oral evidence apart from marking the documents as exhibits. Sd/- (DR.K.MANMADHA RAO) JUDGE bnv