IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.63542-63545/2016 (GM-CPC) BETWEEN:
SMT. G. SHARADAMMA, W/O LATE N. ASHWATHAPPA, AGED ABOUT 52 YEARS, RESIDENT OF THONDALA VILLAGE, HOLUR HOBLI, TALUK AND DISTRICT:KOLAR-563101.
... PETITIONER (BY SRI VEERANNA G. TIGADI, ADVOCATE) AND:
MR. AJAZ AHMMED KHAN, S/O LATE ABDUL AJIZ KHAN, AGED ABOUT 56 YEARS, RESIDENT OF HYDERALI MOULA, SRINIVASAPUR, DISTRICT: KOLAR-563101.
... RESPONDENT (BY SRI Y.R. SADASHIVAREDDY, SR. COUNSEL FOR SRI DEEPAK.J., ADVOCATE) …… THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-L THE IMPUGNED ORDER DATED 16.11.2016 IN O.S.NO.290/2014 ON UNNUMBERED IA, PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM, KOLAR.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant has filed the present writ petitions against the order dated 16.11.2016 made in O.S.No.290/2014 on the file of the Prl. Senior Civil Judge and CJM, Kolar, rejecting three applications filed by the defendant (i) under Order VIII Rule 1(a) r/w Section 151 of Code of Civil Procedure to condone the delay in producing the documents; (ii) under Section 151 of Code of Civil Procedure to reopen the defendant side evidence and (iii) under Order XVIII Rule 17 r/w Section 151 of Code of Civil Procedure seeking permission to recall DW-1 for further examination in chief.
2. The respondent/plaintiff filed suit in O.S.No.
290/2014 for specific performance to enforce the agreement of sale dated 19.07.2014, contending that the defendant is the owner of the suit schedule property morefully described in the schedule. Defendant entered into an agreement of sale with the plaintiff on 19.07.2014 to sell the suit schedule property for a valuable consideration of Rs.8 lakhs and received Rs.7 lakhs on the date of the agreement from the plaintiff in the presence of witnesses and agreed to receive the balance amount of Rs.1 lakh at the time of registration of the sale deed and inspite of repeated requests and legal notice dated 28.07.2014, the defendant failed to execute the sale deed. Therefore, filed suit for specific performance.
3. The defendant filed written statement, denied the plaint averments and contended that she never executed such agreement of sale in favour of the plaintiff and therefore sought for dismissal of the suit.
4. When the matter was posted for arguments, at that stage, defendant filed three applications filed by the defendant (i) under Order VIII Rule 1(a) r/w Section 151 of Code of Civil Procedure to condone the delay in producing the documents; (ii) under Section 151 of Code of Civil Procedure to reopen the defendant side evidence and (iii) under Order XVIII Rule 17 r/w Section 151 of Code of Civil Procedure seeking permission to recall DW-1 for further examination in chief, contending that, the petitioner/defendant was examined as DW-1 and she could not produce all the documents. Subsequently, she secured the documents and sought to produce the same by filing applications and accordingly filed the above applications. The said applications were resisted by the plaintiff by filing objections contending that at belated stage, the documents sought to be produced has nothing to do with the case and therefore sought for dismissal of the applications.
5. The Trial Court, considering the entire material on record, by the impugned order dated 16.11.2016, dismissed the applications. Hence the present writ petitions are filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Veeranna G. Tigadi, learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the applications filed by the defendant is erroneous. The Trial Court has passed the impugned order without assigning proper reasons and therefore, sought to set- aside the impugned order by allowing the writ petitions.
8. Per contra, Sri Y.R.Sadashivareddy, learned Senior counsel for Sri Deepak, learned counsel for the respondent/plaintiff sought to justify the impugned order and contended that similar applications were filed on the earlier occasion by assigning similar reasons. The said applications came to be rejected on 03.11.2016. The said order has reached finality. The present three applications filed by the defendant is only with an intention to drag the proceedings and delay the disposal of the suit and absolutely no reasons are assigned in the affidavits accompanying the applications to allow the applications. If defendant wants to rely upon the FIR and PCR, since they are already part of the record and they can be looked into by the learned Judge, and as such there is no need to allow the applications filed by the defendant and therefore sought for dismissal of the writ petitions.
9. Having heard the learned counsel for the parties, it is undisputed fact that the respondent herein filed suit for specific performance to enforce the agreement of sale dated 19.07.2014 contending that the defendant executed the said agreement to sell the suit schedule property for a valuable consideration of Rs.8 lakhs and received Rs.7 lakhs and agreed to receive the balance Rs.1 lakh at the time of registration of sale deed. Same is denied by the defendant contending that she has never executed such an agreement in favour of the plaintiff.
10. After completion of evidence, when the matter was posted for arguments, the defendant filed the said three applications. The suit was filed in the year 2014 and it is posted for arguments. At this belated stage, applications are filed. If defendant was really diligent, he should have filed the application at appropriate time. The action of defendant clearly indicates that it is a dilatory tactics adopted by her to drag proceedings, as rightly contended by the learned senior counsel for the plaintiff/ respondent.
11. After considering the applications, the Trial Court recorded a finding that, “when the matter stood posted for arguments of the parties, these three applications have been filed only to produce the certified copy of the PCR No.71/2006 and FIR in Crime No.228/2016 of Srinivasapur Police Station. According to me as these two documents are the certified copies, as the matter stands posted for arguments, the defendant as well could rely upon the same while addressing the arguments to which this Court can take judicial note of. Inspite of knowing these legal implications, intentionally only to delay the proceedings, this applications are filed which according to me is meritless. Moreover, so far as relevance of those documents to the present suit on hand is an another question”. Accordingly, the Trial Court rejected the applications.
12. The Trial Court considering the entire material on record, passed the impugned order. The same is in accordance with law. Petitioner has not made out a case to interfere in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petitions are dismissed.
kcm Sd/- JUDGE