IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.41406 OF 2017 AND WRIT PETITION NO.46623 OF 2017 (GM–CPC) BETWEEN H. ABDHUL GHANI SINCE DEAD BY HIS 1. SYED UNNISSA W/O LATE H. ABDHUL GHANI, AGED ABOUT 72 YEARS 2. MOHAMED IQBAL AHMED S/O LATE H. ABDHUL GHANI, AGED ABOUT 40 YEARS.
BOTH ARE R/O HEBBUR VILLAGE, HEBBUR HOBLI, TUMKUR TALUK. …PETITIONERS (BY SRI H.M. KISHORE KUMAR, ADV. FOR SRI SHIVANNA.A.G, ADVOCATE) AND SRI. H.G. GOVINDARAJU S/O SRINIVASA SETTY, AGED ABOUT 65 YEARS, R/O HEBBUR VILLAGE, HEBBUR HOBLI, TUMKUR TALUK – 572 227. …RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER ANNEXURE-A DATED 18.08.2016 MADE ON I.As IN O.S.193/2005 PASSED BY THE COURT OF ADDL. CIVIL JUDGE (JR. DN.,) AND JMFC AT TUMAKUR AND ALLOW THE SAID APPLICATIONS FILED BY THE PLAINTIFF.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING ORDER The petitioners/plaintiffs have filed the present writ petitions against the order dated 18.8.2017 on IA made in O.S.193/2005 rejecting the application filed by the plaintiffs under Section 151 of CPC and order 18 Rule 17 R/w Section 151 of CPC.
2. The present petitioners, who are the plaintiffs in the trial Court filed OS No.193/2005 for declaration of title and for permanent injunction in respect of the suit schedule property morefully described in the schedule contending that the property belongs to plaintiffs great grand father and on succession, the plaintiffs have become absolute owner of the suit schedule property. The defendant has no manner of right, title or interest to interfere with the same. Therefore, he filed the suit.
3. The defendants filed the written statement denying the plaint averments and contended that the defendant is the absolute owner in possession and enjoyment of the written statement schedule property having purchased under the registered sale dated 18.11.1991. Absolutely, the plaintiffs have no manner of title in the written statement schedule property. Inspite of the same, the plaintiffs are trying to interfere with the defendant’s possession by way of encroachment. Therefore, the defendant was constrained to file O.S.No.276/2005 and obtained an order of status-quo in respect of the written statement schedule property. Therefore, the suit for injunction without being in possession of the entire suit property is not maintainable and sought for dismissal of the suit.
4. After completion of the evidence on both sides, when matter was posted for arguments, at that belated stage, the plaintiffs have filed two applications under section 151 to reopen and recall DW1 for further cross-examination contending that defendant No.1 was examined as DW1 and plaintiffs have cross-examined him and some points are left out during the course of cross-examination i.e., measurements of the property of the plaintiff and defendants and neighbourings sites. Therefore, he sought to allow the applications. The said applications was resisted by the defendant by filing objections reiterating the averments made in the written statement and sought for rejection of the applications. The trial Court considering the applications and objections, by the impugned order dated 18.8.2017 rejected the applications. Hence, the present writ petitions are filed.
5. I have heard the learned counsel for the petitioners.
6. Sri Kishore Kumar, learned counsel appearing for the petitioners/plaintiffs vehemently contended that the impugned order passed by the trial Court rejecting the applications without assigning any valid reasons is erroneous and contrary to the materials on record. He further contended that the trial Court earlier also rejected the application filed by the plaintiffs under Order 26 Rule 9 on the ground that the matter was posted for arguments. The trial Court has not considered the fact that the plaintiffs have left out certain points during the course of cross-examination with regard to the measurements. Therefore, the trial Court ought to have allowed the applications to provide an opportunity. Hence, sought for quashing of the impugned order by allowing the present writ petitions.
7. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs have filed the suit for declaration and for permanent injunction in respect of the suit schedule property. The same was denied by the defendant and set up his title to the written statement schedule property and contended that very suit filed by the plaintiffs is not maintainable. It is also not in dispute that the suit was filed in the year 2005 for declaration and permanent injunction and after completion of the evidence on both sides, the trial Court posted the matter for arguments. At that belated stage on 4.8.2017, the present applications were filed after lapse of more than 12 years.
8. The trial Court considering the applications and objections has specifically recorded a finding that the plaintiff counsel cross-examined DW1 fully on 26.7.2016. Thereafter case was posted for defendant’s evidence. After several adjournments and after completion of the evidence of the defendants side, the case was posted for arguments on 19.6.2017. The plaintiffs have filed the applications for appointment of Court Commissioner, which was rejected by the Court and the same has reached finality and posted the matter for arguments.
9. The Court further recorded that on perusal of the cross-examination of DW1, it is clear that the plaintiffs have cross-examined DW1 at length on three hearing dates and completed his cross- examination. But now filed the present applications to reopen and recall DW1. If really he wants to cross-examine, why he is not filed the applications at the earlier stage and why he has kept quite till the case is posted for arguments has not been explained by the plaintiffs in the applications. The trial Court has dismissed the applications relying on the judgment of this Court in the case of Smt. Pillamma and Others /vs./ Smt. Munithayamma and others reported in 2016(1) KCCR 337, wherein this Court has held that after completion of the evidence once the matter posted for arguments, the applications to recall for cross-examine the witnesses should not be entertained.
10. The Hon’ble Supreme Court while considering the provisions under Order XVIII Rule 17 of CPC in the case of Gayathri /vs./ M.Girish reported in (2016) 14 SCC 142, has held as under:
7 In K.K. Velusamy (2011) 11 SCC 275 : (2011) 3 SCC (Civ) 665 while dealing with the power under Order XVIII Rule 17, this Court held that:-
“9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate ] (2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198.
10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.”
And again: (SCC pp.285-86, paras 19 & 21) “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.
21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.”
We have referred to the said paragraphs to show the purpose of filing an application under Order 18 Rule 17 of the Code. We may add that though in the said decision this Court allowed the appeals in part, the fact situation, the conduct of the party and the grievance agitated were different. The Court also thought it apposite to add a word of caution and also laid down that if the application is mischievous or frivolous, it is desirable to reject the application with costs.
8. In this context, we may fruitfully refer to Bagai Construction .v. Gupta Material Store (2013) 14 SCC 1 : (2014) 2 SCC (Civ) 382. In the said case the Court had expressed its concern about the order passed by the High Court whereby it had allowed the application preferred under Order XVIII Rule 17 that was rejected by the trial court on the ground that there was no acceptable reason to entertain the prayer. Be it stated, this Court set aside the order passed by the High Court. In the said case, it has also been held that it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. That apart, it has also been held that the Courts should constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated. Painfully, the Court observed:
“15. … In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.”
9. In the case at hand, as we have stated hereinbefore, the examination-in-chief continued for long and the matter was adjourned seven times. The defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial Court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the petitioner -defendant shown towards the proceedings of the Court is absolutely manifest. The disregard shown to the plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command. Applications are not to be filed on the grounds which we have referred to hereinabove and that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law.
10. In this context, we may profitable reproduce a passage from Shiv Cotex v. Tirgun Auto Plast (P) Ltd. (2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817 wherein it has been stated that: (SCC p.682 para 15) “15. It is sad, but true, that the litigants seek — and the courts grant — adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation.”
The court has further laid down that: (SCC p.682 para 15) “15. … It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further.”
11. In Noor Mohammed v. Jethanand (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754 commenting on the delay caused due to dilatory tactics adopted by the parties, the Court was compelled to say: (SCC p.215, para 28).
“28. In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach.”
And, again: (SCC p.216, para 31) “31. Thus, from the aforesaid, it is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be Herculean, the same has to be performed with solemnity, for faith is the “élan vital” of our system.”
11. Having considered the pleadings, applications and the dictum of this Court and the Hon’ble Supreme Court, the trial Court has rightly rejected the applications on the ground that on three days, plaintiffs have cross-examined DW1. Petitioners have not made out any case to interfere with the impugned order under Article 227 of the Constitution of India. Accordingly, the writ petitions are dismissed.
Sd/- JUDGE KLY/