IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NOs.53804 AND 54202 OF 2018 (GM-CPC) BETWEEN:
SMT.ANUPAMA MAHADEV W/O SRI R.MAHADEV AGED ABOUT 52 YEARS, R/A NO.1302, 7TH MAIN WEST OF CHORD ROAD II STAGE, BENGALURU-560086 REPRESENTED BY HER SPA HOLDER SRI M.KISHAN AGED 40 YEARS S/O LATE R.MAHADEV ...PETITIONER (BY SRI D.PRABHAKAR, ADVOCATE) AND:
SRI NARAYANA SWAMY NAIDU AGED ABOUT 60 YEARS, R/A NO.44/14, 3RD MAIN, MOUNT JOY EXTENSION SUKENHALLI BENGALURU-560019. ...RESPONDENT (BY SRI S.SRINIVASA MURTHY, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.10.2018 PASSED BY THE XLIII ADDITIONAL CITY CIVIL JUDGE IN O.S.NO.4427/2006 ON I.A.NOS.3 AND 4 FILED UNDER SECTION 151 OF CPC VIDE ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri D.Prabhakar, learned Counsel for the petitioner.
Sri S.Srinivasa Murthy, learned counsel for the respondent.
2. In these petitions preferred under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 06.10.2018 passed by the XLIII Additional City Civil Judge (CCH-44), Bengaluru, by which application preferred by the petitioner under Section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as the ‘Code’ for short) as well as an application under Order XVIII Rule 17 of the Code seeking cross-examination of PW-1 as been dismissed.
3. Facts giving raise to filing of these writ petitions, briefly stated are that, the petitioner has filed a suit seeking the relief of permanent injunction on 29.05.2006. On 12.09.2018, the trial court close the cross-examination of the plaintiff witness No.1 due to non-appearance. Thereafter on 24.09.2018, the petitioner filed two applications, namely, under Section 151 of the Code as well as under Order XVIII Rule 17 of the Code seeking permission to cross-examine PW-1. The trial court, by impugned order dismissed the aforesaid application by an order dated 06.10.2018. Being aggrieved, these petitions are filed on 30.11.2018.
4. Learned counsel for the petitioner submitted that the petitioner be granted one opportunity to produce PW-1 and a date in this regard may be fixed. It is also submitted that the petitioner is ready and willing to pay such amount of costs as may be directed by this Court.
On the other hand, learned counsel for the respondent has opposed the prayer and has supported the order passed by the trial court.
5. Admittedly, the proceedings in the suit is fixed for final arguments on 14.01.2019. The suit was filed in the year 2006. The trial court has recorded that from 10.11.2009, the case is being postponed for recording the evidence of the plaintiff to 08.12.2009, 22.01.2010, 23.02.2010 and again from 28.05.2010 to 16.07.2010 and 04.09.2010 and finally an opportunity was granted on 04.10.2010. Despite last opportunity being granted, again the case was postponed for recording of the evidence from 11.09.2014, 09.10.2014 and 30.10.2014. Again on, 07.04.2015, power of attorney of the plaintiff was examined as PW-1 and for further cross- examination in chief of PW-1, the proceeding in the suit was adjourned to 27.04.2015, 08.06.2015, 22.06.2015, 10.07.2015, 29.07.2015, 26.08.2015, 10.09.2015, 07.10.2015 and on 07.10.2015, the evidence of PW-1 was taken as closed. Again, on 23.04.2016, PW-1 was partly cross-examined and his cross- examination was postponed to 22.07.2016, 04.08.2016,
further cross-examination, the suit was postponed to 21.11.2016. On the aforesaid date, the cross-examination of PW-1 was taken as closed. Again, an application under Order XVIII Rule 17 as well as an application under Section 151 of the Code was filed, which was allowed with cost of Rs.500/- on 25.07.2017. The proceeding in the suit was postponed to 24.08.2017, 04.10.2017, 27.10.2017, 16.11.2017, 12.12.2017, 01.02.2018, 05.03.2018, 12.04.2018, 09.08.2018 and 12.09.2018. On 12.09.2018, the cross-examination of Plaintiff Witness No.1 was closed and once again, the applications were filed seeking reopening of the case and for recall of the aforesaid witnesses. The aforesaid application has been dismissed by the trial court vide impugned order on the ground that the suit is of the year 2006 and due to dilatory tactics being adopted by the petitioner, the same could not be disposed of.
6. The decision of the Supreme Court in Supreme Court in the case of ‘Gayathri Vs. M.Girish’, (2016)14 SCC 142, has deprecated the practice of repeatedly seeking adjournments by filing an application under Order XVIII Rule 17 of the Code at the stage of arguments of the suit. Admittedly, the proceeding in the suit are fixed for final arguments on 14.01.2019. The order passed by the trial court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS Vs. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY Vs.
RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 AND RADHE SHYAM AND ANOTHER Vs. CHABBINATH AND OTHERS’, (2015) 5 SCC 423].
In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Articles 227 of the Constitution. I do not find any merit in these petitions and the same are hereby dismissed.
Sd/- JUDGE dh