IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR.JUSTICE B MANOHAR. WRIT PETITION Nos OF 2015 (GM-CPC)

Transcription

1 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27 TH DAY OF JANUARY, 2015 BEFORE THE HON BLE MR.JUSTICE B MANOHAR WRIT PETITION Nos OF 2015 (GM-CPC) BETWEEN: 1. SMT.B.R.NAGALAKSHMI AGED ABOUT 51 YEARS W/O. DR.K.V.THIPPERUDRAIAH R/AT NO.18, 2 ND CROSS KIRLOSKAR LAYOUT II STAGE, BASAVESWARANAGAR BANGALORE SMT.B.R.LAKSHMI DEVI AGED ABOUT 48 YEARS D/O. LATE B.C.RAJASHEKARA W/O. SRI.S.RAVI R/AT NO.16, HARIKRUPA PATTALAMMA TEMPLE STREET BASAVANAGUDI BANGALORE PETITIONERS (BY SRI:C.R.SUBRAMANYA, ADVOCATE) AND 1. SRI.B.C.CHANDRASHEKARA AGED ABOUT 80 YEARS S/O. LATE. L.CHIKKALINGAIAH R/AT NO.160/X, 4 TH MAIN, 4 TH PHASE KATRIGUPPE (EAST), BANASHANKARI III RD STAGE, BANGALORE

2 SRI.B.C.SOMASHEKARA AGED ABOUT 79 YEARS S/O. LATE. L.CHIKKALINGAIAH R/AT SRI.CHAMUNDESHWARI TEMPLE GATTAHALLI VILLAGE, HOLUR HOBLI KOLAR TALUK, KOLAR DISTRICT SRI.B.R.RAMARAJA AGED ABOUT 45 YEARS S/O. LATE. B.C.RAJASHEKARA R/AT NO.40, KHAZI STREET BASAVANAGUDI BANGALORE SRI.B.R.ANAJAN KUMAR AGED ABOUT 47 YEARS S/O. LATE B.C.RAJASHEKARA R/AT NO.40, KHAZI STREET BASAVANAGUDI BANGALORE SMT.B.C.SRIDEVI AGED ABOUT 50 YEARS D/O. DR.B.C.CHANDRASHEKARA W/O. SRI.M.AMARNATH R/AT NO.766, 4 TH MAIN, 4 TH BLOCK RAJAJINAGAR BANGALORE RESPONDENTS (BY SRI.MADHUKAR NADIG, ADVOCATE FOR C/R1, 3 AND 5) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED CITY CIVIL JUDGE IN O.S.NO.1276/2010 ON I.A S 8 TO 10 DTD VIDE ANNEX-F AND ETC., THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

3 - 3 - ORDER Petitioners are the plaintiffs No.1 and 2 in O.S.No.5168/2009, which was subsequently renumbered as O.S.No.1276/2010 on the file of the V Additional City Civil Judge, Bangalore. Being aggrieved by the order dated rejecting I.A.No.8 filed under Section 151 of CPC to reopen the case of plaintiff, I.A.No.9 filed under Order 18 Rule 17 of CPC to recall PW1 for further evidence and I.A.No.10 filed under Order 7 Rule 14(3) of CPC to condone the delay in filing the documents, the petitioners have filed these writ petitions. 2. Petitioners herein filed the suit seeking for partition and separate possession of 1/12 th share each in respect of A schedule property in items No.1 to 5 and 1/4 th share each in respect of B and C schedule properties and to put them in possession by metes and bounds and for other reliefs. The contesting

4 - 4 - defendants are the joint family members of the plaintiffs. They entered appearance and filed written statement to the suit. On the basis of pleadings of the parties, the trial Court framed the necessary issues. On the basis of issues, the case was posted for the evidence of plaintiffs. Plaintiff No.1 was examined as P.W.1 in part. In spite of repeated adjournments, the 1 st plaintiff has not lead any further evidence. In view of that, the trial Court held the evidence of PW.1 as closed. Thereafter, the matter was posted for arguments. After taking three adjournments for arguments, plaintiff No.1 filed I.A.No.8 under Section 151 of CPC to reopen the case of plaintiff, I.A.No.9 under Order 18 Rule 17 of CPC to recall PW1 for further evidence and I.A.No.10 under Order 7 Rule 14(3) of CPC to condone the delay in filing the documents and also sought for permission to produce documents.

5 The Trial Court after considering the matter in detail found that though the suit was filed in the year 2008, the case was posted for plaintiffs evidence and the 1 st plaintiff examined as PW1 and not lead any further evidence in spite of many opportunities being given to lead further evidence. When the case was posted for arguments, the plaintiff No.1 came up with these applications. The documents sought to be produced are the RTC entries and mutation extracts and the same are public documents. These documents could not have been produced along with plaint or with the list of documents. At this stage, the petitioners cannot be permitted to produce documents. Hence, there is no bonafide in the claim made by the plaintiffs to reopen the case of PW1 and to lead further evidence. Accordingly, dismissed all the applications filed by the plaintiffs. Being aggrieved

6 - 6 - by the same, the petitioners have filed these writ petitions. 4. Sri.C.R.Subramanya, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court is contrary to law. Due to non-availability of some of the documents, PW1 could not lead further evidence due to her ill-health. Therefore, learned counsel contended that if the applications filed by the plaintiffs are not allowed, they will be put to great hardship. Hence, sought for allowing the writ petitions. 5. I have carefully considered the arguments addressed by the learned counsel appearing for the parties, perused the order impugned and other relevant records. 6. The records clearly disclose that the plaintiffs filed the suit seeking for partition and

7 - 7 - specific performance in the year 2008, which was renumbered as OS No.1276/2010. The 1 st plaintiff examined herself as PW1 in part. Thereafter, she did not lead any evidence. She has not subjected herself for cross-examination, though the opportunity was given to the plaintiffs to lead evidence. In view of that, evidence of PW1 was closed. When the case was posted for arguments on three occasions, the applications were filed for reopening the case of plaintiffs and leading evidence. The Trial Court taking into consideration all these aspects of the matter rejected the applications. I find that there is no infirmity or irregularity in the order rejecting the application filed under Order 18 Rule 17 of CPC. The Hon ble Supreme Court in a judgment reported in (2013) 14 SCC 1 (Bagai Construction vs- Gupta Building Material Store) interpreted the scope and ambit of Order 18 Rule 17 of CPC relying upon the

8 - 8 - earlier judgment reported in AIR 2009 SC 1604, (Vadiraj Nagappa Vernekar (dead) through LRs. V/s. Sharad Chandra Prabhakar Gogate) and laid down a law that the power under the said provision is to be used sparingly in an appropriate case and not as a general Rule merely on the ground that recalling and re-examining the witness would not cause any prejudice to the parties. That is not the claim or intention of Order 18 Rule 17 of CPC. The power under the said provision if used in a routine manner would defeat the very purpose of amendments of CPC. In the instant case, though the opportunity was given to the plaintiffs to lead evidence and also lead further evidence, the plaintiffs have not utilized the said opportunity. When the case was posted for arguments even after taking three adjournments, the applications were filed. Hence, there is no bonafide in the applications filed for recalling. I do not find that there

9 - 9 - is no infirmity or irregularity in the order passed by the Trial Court. The petitioner has not made out a prima facie case to interfere with the order passed by the Trial Court. Accordingly, I pass the following: ORDER The writ petitions stand dismissed. SD/- JUDGE HJ/bkm.