IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.48899 OF 2017 AND WRIT PETITION NO.55360 OF 2017 (GM CPC) BETWEEN:
1. Irene Saldanha, W/o late Salvadore Saldanha, Age 6 years, Occ:Household Work, R/o Munnur House, Neemarga Village and Post, District & Taluk: Mangaluru-575 001.
2. Roopa, D/o Late Salvadore Saldhana, Age 39 years, Occ:Household Work, R/o Munnur House, Neemarga Village & Post, District & Taluk: Mangaluru-575 001.
... Petitioners (By Sri.Hemant Chandan Gowdar, Advocate) AND:
1. Mr.Poovappa Suvarna, @ Poovappa Poojary, S/o Late. Devu Poojary, Aged about 85 years, R/at: H.No.2.80, Neermarga, Mangalore Taluk-575 001.
2. Smt.Monthi Saldanha, D/o Late.Christine Saldanha, Aged about 78 years, 3. Juliana, D/o late Christine Saldanha, Age-Not known 4. Jockim, S/o Christine Saldanha, Age-Not known 5. Alice, D/o Christine Saldanha, Age-Not known 6. Leena, D/o Christine Saldanha, Age-Not known 7. Rohison, S/o Christine Saldanha, Aged about 22 years … Respondents (Notice to R2 to R7 is dispensed with vide order dated 27.07.2018 R1 is served-unrepresented) These writ petitions are filed under Article 227 of the Constitution of India praying to quash the order dated 09.02.2017 passed by the I Additional Civil Judge and JMFC, Mangaluru, D.K., on IA No.14 and 15 in OS.No.38/2009 vide Annexure-F by issuing a writ of certiorari and further allow the said applications.
These Petitions coming on for Orders this day, the Court made the following:
ORDER The defendants have filed these present writ petitions against the order dated 09.02.2017 passed on IA.No.14 and 15 made in OS.No.38/2009 on the file of I Additional Civil Judge (Jr.Dn), Mangaluru, Dakshina Kannada, rejecting the applications filed under Order 18, Rule 17 read with Section 151 of Code of Civil Procedure to recall and reopen the case and permit the defendants to cross-examine PW1.
2. The first respondent-Proovappa Poojrary who is the plaintiff before the trial court filed the suit for specific performance to enforce the agreement dated 02.09.1985, which is said to have been executed by the defendants- present petitioners. In spite of the legal notice, defendants have not executed the sale deed; therefore, plaintiff filed the suit for specific performance.
3. The defendants filed written statement and denied the averments in the plaint and also filed counter claim by way of mandatory injunction. Hence, sought for dismissal of the suit. After completion of the evidence, when the matter was posted for defendant’s evidence, at that stage, the defendant No.6 has filed two applications under Order 18, Rule 17 read with Section 151 of the Code of Civil Procedure to reopen and recall the case for cross- examination of PW1, contending that when the matter was posted on 02.12.2016, the defendant No.6 had deposited the Commissioner Fee of Rs.2,000/- by way of Demand Draft dated 01.12.2016 drawn on Syndicate Bank and also paid the cost Rs.2,000/- to the plaintiff.
4. It is also submitted that defendant No.6 had paid the process fee to issue Commissioner Warrant. Advocate, Sri.Pramod was appointed as a Court Commissioner to execute the warrant in earlier occasion. The matter was posted on 30.01.2017 for Commissioner’s report. On that day counsel of defendant No.6 had personally informed about the steps taken by him on behalf of defendant No.6 in the case, but Advocate, Sri.Pramod, did not receive any commission warrant from the Court. Thereafter, when the matter was posted on 01.02.2017, the defendant was present and the court directed the counsel to call Advocate, Sri.Pramod. Accordingly, when counsel contacted Sri.Pramod, over phone, he replied that he is not in a position to appear before the Court as he is busy in other court proceedings. The defendants have taken efforts to execute the Commissioner Warrant.
5. The said application filed by the defendant No.6 was resisted by the plaintiff by filing objections and contended that on last hearing date, cross-examination of PW1 was taken as NIL as defendant No.6 did not take any steps for issuance of warrant and denied the other contentions. Hence, he sought for dismissal of the applications.
6. The trial Court considering the application filed by the defendants to re-call and re-open the case for cross- examination of PW1 has rejected by the impugned order dated 09.02.2017 with costs of Rs.2,000/-. Hence, present writ petitions are filed.
7. Respondent No.1 is served and unrepresented.
Notice to respondent Nos. 2 to 7 is dispensed with by an order dated 27.07.2018.
8. I have heard the learned counsel for the petitioners.
9. Sri.Hemanth Chandra Gowdar, learned counsel for the petitioners contended that impugned order passed by the trail Court in rejecting the applications to re-call and re-open the case for cross-examination of PW1 is erroneous. He would further contend that defendant Nos.6 and 7 have taken all steps in pursuance to the order dated 23.11.2016 to get Commissioner’s warrant executed. But the Advocate, Sri.Pramod did not appear before the Court as he was pre-occupied in another Court and also refused to receive Commissioner Fee of Rs.2,000/-. Having regard to the genuine efforts made by the defendant Nos.6 and 7, Trial Court should have appointed another commissioner or directed Sri.Pramod, Advocate to appear before the Court instead of taking the cross-examination of PW1 as NIL. He further contended that in the suit of specific performance, if the cross-examination of PW1 is not allowed, the defendants will put to great hardship which cannot be compensated in terms of money. Therefore, he prays for an opportunity by imposing reasonable costs.
9. Having heard the learned counsel appearing for the petitioners, it is undisputed fact that the plaintiff has filed the suit for specific performance to enforce the agreement dated 21.09.1985 raising various contentions. The defendant Nos. 6 to 7 denied all the averments made in the plaint by filing written statement. It is also not in dispute that when the Commissioner came to be appointed at the instance of the plaintiff, the defendant Nos.6 and 7 have taken steps and deposited Rs.2,000/- as Court Commissioner fee and also paid cost of Rs.2,000/- to the plaintiff and also paid process fee for issuance of Commissioner Warrant. The Court commissioner was not present before the Court when the matter was posted for cross-examination of PW1 on the ground that he was engaged in some other Court. The trial Court proceeded to record the finding that on 02.12.2016 the defendant filed DD for Rs.2,000/- towards Court Commissioner fee but not filed affidavit. It is only on 03.12.2016, the defendant has filed the necessary affidavit and posted the case for await of Commissioner report. On 30.01.2017, the defendant Nos.6 and 7 represented by their advocate and paid the process fee for issuance of Commissioner warrant. The defendants were directed to keep the Court Commissioner present by 3 pm. When the case was called at 3pm, the defendant Nos.6 and 7 prayed time and same was posted to 01.02.2017. On 01.02.2017 the court was constrained to take the cross- examination of PW1 as NIL and posted the case for further plaintiff evidence. Moreover, the defendants were given sufficient opportunity to cross-examine the PW1, in spite of the same, the defendants have not availed.
10. The fact remains that defendant No.6 has taken steps by depositing court fee of Rs.2,000/- and also cost of Rs.2,000/- paid to the plaintiff and paid process fee to issue Commissioner warrant, but he could not bring the Court Commissioner before the Court as he was engaged in some other Court. Same is stated in the affidavit accompanying application. Though the matter is of the year 2009, the learned trial Judge should have provided an opportunity to the defendants as a last chance to cross- examine PW1 by imposing reasonable costs.
11. Taking into consideration, the rights of the parties are involved in respect of immovable property and suit being filed specifically to enforce the agreement dated 21.09.1985 and also the fact that it is not the mistake on the part of the defendants and since the Court Commissioner was engaged in some other Court, he did not appear in the present case, when the case was called, the trial Court ought to have allowed the applications by imposing costs.
12. For the reasons stated above, the writ petitions are allowed. The impugned order dated 09.02.2017 passed by the trial Court on IA.Nos.14 and 15 filed by the defendants to re-open and re-call the case for cross- examination of PW1 under Order 18, Rule 17 read with Section 151 of CPC are hereby quashed, IA Nos.14 and 15 are allowed, subject to payment of Rs.3,000/- each in all Rs.6,000/- payable by the defendants to the plaintiff on next date of hearing.
13. Learned counsel for the petitioner submits that matter is posted tomorrow i.e. on 19.03.2019. The said submission is placed on record. The learned counsel shall intimate the trial court about the result of the writ petitions. The learned Judge is directed to permit the defendants to cross-examine PW1 on the next date to be fixed by the learned Judge and the defendants shall not seek for any adjournment and ensure the presence of the Court Commissioner before the Court, failing which, Trial Court shall proceed in accordance with law.
Sd/- JUDGE SB