IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE Mr. JUSTICE L. NARAYANA SWAMY C.R.P. NO.179/2017 BETWEEN:
SMT. AMRUTHKALA W/O MR. M.G. KUMAR AGED ABOUT 52 REPRESENTED BY GPA HOLDER M G KUMAR R/O NO.47, NETHAJI ROAD FRAZER TOWN BENGALURU – 560 005 … PETITIONER (BY SRI SHASHANK KUMAR, ADVOCATE) AND:
BHARAT SANCHAR NIGAM LTD DEPARTMENT OF TELECOMMUNICATION GOVERNMENT OF INDIA ENTERPRISES REPRESENTED BY ACCOUNT OFFICER BANGALORE TELECOM DISTRICT TR – PURSUT II (EAST) 3RD FLOOR, INDIRA NAGAR TELEPHONE EXCHANGE 80FT ROAD BENGALURU – 560 038 … RESPONDENT (BY SRI H.T. VASANTH KUMAR, ADVOCATE) THIS CRP IS FILED UNDER SECTION 115 OF C.P.C., AGAINST THE ORDER DATED 24.03.2017 PASSED ON IA NO.2 FILED IN OS.NO.7059/2003 ON THE FILE OF THE XL ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, DISMISSING THE IA NO.2/2015 FILED UNDER ORDER XII RULE 6 R/W SECTION 151 OF CPC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner aggrieved by the order of dismissal dated 24.03.2017 passed on IA No. 2/2015 filed by him under Order XII, Rule 6 read with Section 151 of Code of Civil Procedure (C.P.C.), in O.S. No.7059/2003 on the file of the XL Addl. City Civil and Sessions Judge, Bengaluru, has filed this petition, praying to allow the application.
2. Learned counsel for the petitioner submits that the respondent in his evidence before the trial Court has admitted the fact that the STD PCO was surrendered in November-1997 and there was no arrears or default in payments. This admission itself is sufficient to file an application under Order XI Rule 6 of C.P.C. and once such application is filed it is the duty of the learned Judge to allow the application. Dismissal of the application is failure to exercise the duty and it is contrary to Section 115 of the C.P.C.. In support of his submission, the learned counsel referred the judgment of the Hon’ble Supreme Court reported in AIR 2010 SUPREME COURT 2077 – Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust and Anr., in which, it has been held that, a party, on the admission of other party, can press for judgment as a matter of legal right. This amendment was brought in the 54 Law Commission Report.
3. Learned counsel for the petitioner further draws my attention to the admission made by the PW1, who is an Accounts Officer and that after his retirement the incoming Officer has also been examined. In their depositions both have admitted the fact that there was no arrears of payment.
4. Learned counsel for the respondent submitted to dismiss the petition contending that the piece of evidence by way of PW1 has no consequence as rightly held by the learned trial Judge.
5. I have heard the learned counsel for both the parties.
6. When it is submitted by the learned counsel for the petitioner that a piece of evidence on behalf of PW1 clarifies that the petitioner has deposited entire bill amount, the question remains is, whether the petitioner has surrendered the PCO STO booth and it has been acknowledged by the respondent-plaintiff. To that extent there is no material. Merely, payment of entire bill and surrendering of booth itself is not a closure, unless it is accepted by issuing proper acknowledgement by the respondent. No such endorsement has been issued. Under this circumstance, the learned trial Judge considering the grounds urged in the application filed under Order XII Rule 6 of C.P.C., has rightly dismissed the same by exercising his discretionary power and held that the petitioner has not made out a case for consideration under Order XII Rule 6 of C.P.C. Hence, I do not find any scope for interference and accordingly, the petition is rejected.
7. Taking note of the fact that the suit is pending since 2003, the learned trial Judge to take steps to dispose of the case as early as possible, in any event not later than six months from today.
Sd/-
JUDGE SBS*