1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16 TH DAY OF APRIL, 2013 B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NOS.17117 & 17437/2013 (GM-CPC) BETWEEN: Sri Chenna Krishnappa, S/o. late Sonnappa, Aged about 66 years, R/at Santhosh Complex, Nagashettihalli, Bangalore 560 094. PETITIONER (By Smt. Sreevidya G.K. for Sri T.N. Vishwanath, Adv.) AND: 1. Sri S. Venkatesh, S/o. late Sonnappa, Aged about 48 years, R/at No.339, Bovi Colony, Nagashettihalli, Bangalore 560 094. 2. Sri S. Munegowda, S/o. late Sonnappa, Aged about 61 years, R/at No.20, 1 st Cross, Hanumaiah Layout, Sanjay Nagar, Bangalore 560 094.
2 3. Sri S. Nanje Gowda S/o. late Sonnappa, Aged about 56 years, R/at No.200, Nagashettihalli, Bangalore 560 094. RESPONDENTS These petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 3.4.2013 passed on I.A filed under Order XVIII Rule 17 r/w S.151 of CPC for reopening the case and I.A. filed under S.151 of CPC for recalling PW-1 in O.S.No.1413/2006 on the file of the XXII Addl. City Civil Judge, Bangalore vide Annexure-G, etc. These petitions coming on for preliminary hearing this day, the Court made the following: ORDER Respondent No.1 is the plaintiff and petitioner and respondents 2 & 3 are the defendants in O.S.No.1413/2006 pending on the file of City Civil Court, Bangalore. Parties to the suit are the sons of late Sonnappa. The suit has been filed to pass a decree for partition and separate possession entitling the plaintiffs to 1/4 th share. Suit having been contested, after raising of issues, trial has taken place. Plaintiff deposed as PW-1 on
3 21.06.2011 and the matter was adjourned for crossexamination of PW-1. Cross-examination was taken as nil. Defendant No.1 petitioner filed application under Order 18 Rule 17 of CPC to recall PW-1 for cross-examination and the same was allowed subject to payment of cost of `300/-. Though PW-1 was present on 18.10.2011, he was not cross-examined but an adjournment application was filed, which was rejected and the cross-examination of PW- 1 was taken as nil. Plaintiff s case was closed and the matter was posted for defendants evidence. On 5.11.2011, learned advocate appearing for the defendants filed application to recall PW-1 and the same was allowed subject to payment of cost of `300/-. PW-1 was recalled for cross-examination. On account of the absence of defendants and their advocates on 07.12.2012, crossexamination of PW-1 was taken as nil and the matter was posted for defendants evidence, to 09.08.2005. Defendants having remained absent, their defence was taken as nil. On 30.03.2012, two I.As. were filed i.e., for re-opening of the case and for recalling of PW-1 for cross-
4 examination, when the suit was at the stage of arguments. Said applications were allowed subject to payment of cost of `600/- and PW-1 was recalled. Though PW-1 was present on 24.05.2012, defendants remained absent and the cross-examination was taken as nil and the suit was posted for defendants evidence. On 01.06.2012, again, defendants filed application to recall PW-1 which was allowed subject to payment of cost of `100/-. On the adjourned date, instead of cross-examining PW-1, an I.A. was filed to treat and try issue No.7 as a preliminary issue. Said application was dismissed on 11.01.2013. Matter was posted of cross-examination of PW-1. Even though PW-1 was present on 2.2.2013, he was not cross-examined. There was no appearance either of defendants or their learned advocate and hence, cross-examination of PW-1 was taken as nil so also the defendants evidence was taken as nil. When the matter was at the stage of arguments, two applications were filed for re-opening of the case and for recalling of PW-1 for cross-examination.
5 Said applications having been dismissed with exemplary cost, these writ petitions have been filed. 2. Heard Smt. Sreevidya G.K., learned advocate for the petitioner and perused the writ petition record. 3. The Trial Court has granted adjournments liberally for the cross-examination of PW-1. The facts noticed supra are not in dispute. Though reasonable opportunity has been granted to the defendants to crossexamine PW-1, repeated opportunities has not been utilized. In the circumstances, the view taken by the Trial Court on the applications filed again to recall PW-1 by reopening of the case, resulting in passing of the impugned order cannot be termed as either irrational or illegal. In the fact situation, the ratio of the decision in the case of M/S. BAGAI CONSTRUCTION THR. ITS PROPRIETOR LALIT BAGAI Vs. M/S. GUPTA BUILDING MATERIAL STORE, 2013 AIR SCW 1564 squarely applies. In the said decision, Apex Court has held as follows:
6 10. In K.K.Velusamy v. N. Palanisamy, (2011) 11 SCC 275, even after considering the principles laid down in Vadiraj Naggappa Vernekar (dead) through L.Rs. v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and taking note of Section 151, CPC, this Court concluded that in the interests of justice and to prevent abuse of the process of the Court, the trial Court is free to consider whether it was necessary to reopen the evidence and if so, in what manner and to what extent. Further, it is observed that the evidence should be permitted in exercise of its power under Section 151 of the Code. The following principles laid down in that case are relevant: 19. We may add a word of caution. The power under Section 151 or Order 18, Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
7 With these principles, let us consider the merits of the case in hand. 11. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words at any stage occurring in Order XVIII, Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial,
8 we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted. In the background of the case noticed supra, I do not find any justification to entertain these writ petitions. Consequently these petitions fail and stand rejected. Sd/- JUDGE sac*