IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.4287-4288 OF 2017 (GM-CPC) BETWEEN:
ABID REHMAN, S/O ABDUL REHAMAN, AGED ABOUT 42 YEARS, R/AT SULE BYLE, OPP:HP GAS GO-DOWN, SHIMOGA CITY. ... PETITIONER (BY SRI.SACHIN B.S, ADVOCATE) AND:
1. SMT.NASEEMUNNISSA, W/O IBRAHIM SAB, AGED ABOUT 56 YEARS, R/AT BELUR ROAD, CHIKKAMAGALUR CITY – 577101.
2. ABDUL JABBAR, @ SYED ABDUL JABBAR, S/O LATE M.RATHNAKAR RAO, AGED ABOUT 53 YEARS, R/AT 1212, 8TH CROSS, R.K.HEGDE NAGAR, BANGALORE – 560 045.
3. SYED ALI, S/O SYED BUDEN SAB, AGE: 60 YEARS, R/AT IST CROSS, PENSION MOHALLA, CHIKKAMAGALUR CITY – 577101.
4. P.NOOR AHAMED, S/O ABDUL BASITH, AGED ABOUT 56 YEARS, R/AT 2ND MAIN ROAD, VIJAYAPURA EXTENSION, CHIKKAMAGALUR CITY – 577101 RESPONDENTS (BY SRI.J.R.SRINIVASA, ADVOCATE FOR R1; NOTICE TO R4 IS D/W V/O DATED 25.06.2018; R1 & R2 ARE SERVED & UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD:11.1.2017 PASSED ON IA NO.9 AND 10 IN O.S.NO.116/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALORE AS PER ANNEXURE-A AND CONSEQUENTLY ALLOW THE IA NO.9 AND 10 AS PRAYED FOR AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the 1st defendant in a declaration suit in O.S.No.116/2013, is knocking at the doors of the writ court for assailing the order dated 11.01.2017, a copy whereof is at Annexure - A, whereby, his two applications in I.A.Nos.9 & 10 for summoning of certain documents from the subject bank and also for the subpoena of the Manager of the said Bank have been rejected by the learned Sr. Civil Judge, Chikkamagalur. After service of notice, the 1st respondent having entered appearance through her counsel, resists the Writ Petitions.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, reprieve needs to be granted in the matter because:
(a) the question relating to payment of part of the consideration under the subject agreement dated 5.4.2011 by three cheques possibly arises in the adjudication of the lis in question; the receiving of one cheque out of these three and its encashment are denied by the petitioner/defendant and therefore, whether such a cheque was presented to the bank or not, can be well ascertained by looking to the bank records; to that extent, the prayer of the petitioner ought to have been granted by the court below, especially when the same would not have caused any prejudice to the opposing parties.
3. However, prayer for summoning of the Manager of the subject bank for deposing as a witnessappears to be untenable as rightly held by the court below inasmuch as in the matter relating to encashment of the cheques, the records of the bank would throw light on the issue, and the oral version of the bank official is insignificant.
In the above circumstances, these Writ Petitions are favoured in part; the impugned order dated 11.01.2017 only to the extent the court below refused to call for the bank records is set at naught, the remaining portion having been retained intact; the petitioner’s I.A.No.9 having been favoured, the court below shall take steps to call for the bank records expeditiously, at the cost of the petitioner.
All other contentions of the parties have been kept open. No costs.
Sd/- JUDGE cbc