IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.13485-13486/2019 (GM-CPC) BETWEEN:
1. SMT. JYOTHI W/O LATE DYAVE GOWDA, AGED ABOUT 34 YEARS, 2. MASTER. THIRSHANKA S/O LATE DYAVE GOWDA, AGED ABOUT 6 YEARS, 3. MASTER. OMKAR S/O LATE DYAVE GOWDA, AGED ABOUT 4 YEARS, SINCE THE 2ND AND 3RD PETITIONERS ARE BEING THE MINORS. THEY WILL BE REPRESENTED BY THEIR MOTHER THE 1ST PETITIONER IN THIS WRIT PETITION WHO IS THE NATURAL GUARDIAN, ALL ARE RESIDING AT RANGENAHALLI GRAMA NAGARANAHALLI POST, HOLENARASIPURA, HASSAN DISTRICT-573201.
... PETITIONERS (BY SRI RAJARAMA SOORYAMBAIL, ADVOCATE) AND:
SRI N. RADAKRISHNA S/O K.U.NAGARAJU, AGED ABOUT 29 YEARS, KOTHANAGHATTA VILLAGE, SHRAVANABELAGOLA, HOBLI, CHANNARAYAPATNA HOBLI, HASSAN DISTRICT PIN CODE:573201.
**** ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 12TH MARCH 2019 ON I.A.NOS.7 AND 8, ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE, CHANNARAYAPATNA IN S.C.NO.19/2017, VIDE ANNEXURE-F.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners – defendants filed the present writ petitions against the order dated 12.3.2019 dismissing I.A.
No.7 filed under Order 16 Rule 15 r/w Section 151 of the Code of Civil Procedure and I.A. No.8 filed under Section 151 of the Code of Civil Procedure to recall DW.2 for further cross-examination and issue summons to DW.2 to produce the documents, with costs of Rs.1,000/- each.
2. The plaintiff filed the suit for recovery of Rs.1,00,000/- based on the cheque bearing No.362914 dated 16.12.2018 drawn on State Bank of India, Holenarasipura Branch, raising various grounds. The defendants filed the written statement and denied the issuance of cheque and sought for dismissal of the suit. After completion of evidence, when the matter was posted for arguments, at that stage, I.A. Nos.7 and 8 came to be filed by the defendants under Order 16 Rule 15 of Code of Civil Procedure and under Section 151 of the Code of Civil Procedure to recall DW.2 for further chief-examination and issue summons to DW.2 to produce the documents. The said applications were resisted by the plaintiff. The trial Court considering the applications and the objections by the impugned order dated 12.3.2019 dismissed both the applications with costs of Rs.1,000/-. Hence the present writ petitions are filed.
3. I have heard the learned counsel for the petitioners.
4. Sri Rajaram Sooryambail, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting I.A. Nos.7 and 8 filed by the defendants is illegal and perverse and cannot be sustained. He would further contend that the basic contention of the respondent – plaintiff is that, one Mr. Dyave Gowda, the husband of the petitioner No.1 – defendant No.1 has borrowed the hand loan of Rs.1,00,000/- and for the said purpose, as a statutory deposit, the cheque has been issued by the deceased i.e., Dyave Gowda. But the defendants have denied the same. If an opportunity is given for the defendants to recall DW.2 for further chief-examination and issue summons to DW.2 to produce the documents, no prejudice would be caused to the plaintiff. The same has not been done by the trial Court. Therefore he sought to allow the writ petitions.
5. Having heard the learned counsel for the petitioners, it is not in dispute that the respondent filed the suit for recovery of Rs.1,00,000/- along with interest. The same was disputed by the defendant by filing the written statement. It is also not in dispute that after completion of evidence on both sides and after giving sufficient opportunity, the matter was posted for arguments and at that stage, the present two applications came to be filed to recall DW.2 for further chief-examination and issue summons to DW.2 to produce the documents. The respondent - plaintiff filed objections to the applications.
6. The trial Court considering the applications and the objections has recorded a finding that when the matter was posted for defendant side arguments, they filed application to reopen the evidence and again produce the documents and got marked in the evidence of DW.1 and matter was again posted for defendant side arguments. On 23.1.2019, the defendants again filed I.A. Nos.5 and 6 seeking to reopen the evidence and to summon the documents from the Manager of State Bank of Mysore, Holenarasipur branch and insptie of allowing the applications and summoning and examining the Manager, they have filed these applications which go to show that they are intending to prolong the matter and inspite of granting sufficient time, they are not interested in early disposal of the matter even though all opportunities are given to them to produce the documents and to mark them in evidence and to summon and examine the witnesses. Though it is contended by learned counsel for the defendants that signature of the deceased on Ex.P1 is seriously disputed by the defendants and there is difference in the signature and said cheque has been misused, the Bank Manager has not produced original specimen signature card which is necessary to be marked in the evidence and it is necessary to summon the manager of the Bank to produce the said documents.
7. The trial Court further recorded a finding that summons has been issued to the defendants by hand for service and they would have instructed to the Bank Manager to produce original document and they were not prevented from producing original documents and marking in the evidence. But inspite of granting sufficient time to them, they are misusing leniency of the Court and avoiding the disposal of the case even though plaintiff side arguments are heard on few occasions. This attitude of defendants cannot be tolerated and they cannot use Court as tool for prolonging the matter. Because, when they filed written statement, they were knowing that, what is their defence and what kind of defence they have to take and what nature of evidence is to be tendered by them to set up their defence. If these kind of applications are allowed, there will be no end for such applications and there are no proper and genuine grounds to allow the applications and they are liable to be dismissed. Accordingly, the applications came to be dismissed with costs.
8. The material on record clearly depicts that insptie of allowing the earlier application, still defendants have not produced the documents to mark the same. The reasons assigned and the conclusion arrived at the by the trial Court are just and proper. The trial Court rightly dismissed the applications. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Gss/-