IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NOS.46381-46382 OF 2016 (GM-CPC) BETWEEN:
1. SMT.LAKSHMI JANARDHAN W/O LATE C.JANARDHAN AGED ABOUT 58 YEARS 2. C.J.NISHAN S/O LATE C.JANARDHAN AGED ABOUT 19 YEARS BOTH ARE R/AT NO.47/2A 13TH CROSS, 8TH MAIN MALLESWARAM BANGALORE – 560 003 ... PETITIONERS (BY SRI.SUBBARAO, SENIOR ADVOCATE FOR SMT.DIVYA KRISHNA, ADVOCATE) AND:
1. N.D.MURALIDHARA S/O V.N.DORESWAMY IYENGAR AGED ABOUT 68 YEARS R/AT 2/1 AND 2/2 NEW NO.1, GEDDALAHALLI VILLAGE POOJARI LAYOUT, WARD NO.100 SANJAYNAGAR BANGALORE – 560 094 2. THE BANGALORE MAHANAGARA PALIKE CORPORATION OFFICES N.R.SQUARE, J.C.ROAD BANGALORE – 560 002 REPTD BY ITS COMMISSIONER 3. THE JOINT COMMISSIONER WEST BANGALORE MAHANAGARA PALIKE MALLESHWARAM BANGALORE – 560 003 ...RESPONDENTS (SRI.V.B.SHIVA KUMAR, ADVOCATE FOR CAVEATOR/RESPONDENT NO.1 RESPONDENT NOS.2 AND 3 – NOTICE DISPENSED WITH VIDE ORDER DATED 29.9.2016) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.7.2016 PASSED BY THE LEARNED XXVII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE IN O.S.7170/2006 VIDE ANNEXURE-F AND ALLOW THE APPLICATLIONS FILED BY THE PETITIONERS VIDE ANNEXURES-C AND D, ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants 3 and 4(a) have filed the present writ petitions against the order dated 23.7.2016 passed on the I.A.s made in O.S.No.7170/2006, dismissing the applications filed by the defendant No.3, under Section 151 of the Code of Civil Procedure (for short “CPC) and under Order 18 Rule 17 read with Section 151 of the CPC, to reopen and to recall PW1 for further cross-examination.
2. The respondent No.1, who is the plaintiff before the Trial Court, filed the suit for a declaration that the suit schedule property constitutes of one single composite unit with property Nos.2/1 and 2/2, new No.01, Geddalahalli village, BBMP Ward No.100, Poojary Layout, Bengaluru; to direct the defendants to deliver vacant possession of ‘B’ schedule property by demolishing the existing illegal, unlawful construction; to further declare that there is no document evidencing title of the defendant No.3 in respect of any portion or portions of the property described in the schedule with its measurement and boundaries; to declare that the khatha issued in the name of the defendant No.3 dated 30.8.2004 as a fraudulent document obtained by fraud and to declare the same as null and void and for injunction restraining the defendant No.3 from dispossessing the plaintiff’s possession in respect of the schedule property, contending that the plaintiff is the absolute owner in possession of the suit property, more fully described in the schedule to the plaint.
3. It is further contended that in pursuance of the sanctioned plan issued in favour of the plaintiff, with a definite intention to own and possess a residential dwelling premises before he could retire from his services and being a member of the said Society, he completed the construction of the premises. It is also contended that the defendant No.3 has been attempting to interfere with the possession and was trying to take possession of the suit property forcibly. Hence, the plaintiff filed a suit for the reliefs stated supra.
4. The defendants filed their written statements, denied the entire plaint averments and contended that earlier suit filed by the plaintiff came to be dismissed and was upheld by this Court and the plaintiff has no locus standi to file the present suit and the suit is liable to be dismissed.
5. After completion of evidence of the plaintiff’s side, when the matter was posted for evidence of the defendants, at that stage, the defendant No.3 filed an application under Section 151 of the CPC to reopen the case and another application under Order 18 Rule 17 read with Section 151 of the CPC to recall PW1 and permit the defendant No.3 to cross-examine PW1, contending that there were other 3 suits in respect of the same property. On 27.4.2016, the case was posted for further cross- examination of PW1. On the eve of the summer vacation, after calling the case in the morning, it was kept by. When the counsel for the defendant returned by 12 noon, the case was already adjourned taking further cross- examination of PW1 as nil. Though the defendants were ready to cross-examine the plaintiff, the plaintiff had misled the Court in getting the case posted for defendants’ evidence. Hence, the applications are filed to reopen the case and recall PW1 for further cross-examination by the defendant No.3. The said applications were resisted by the plaintiff by filing objections and contended that in spite of granting opportunity, the defendants have not availed the opportunity. Therefore, sought to dismiss the applications.
6. The Trial Court considering the applications and objections, by the impugned order dated 23.7.2016, dismissed the applications. Hence, the present writ petitions are filed.
7. I have heard the learned counsel for both the parties.
8. Sri.Subba Rao, the learned senior counsel appearing for the petitioners contended that when the suit is filed for declaration and other reliefs, the Trial Court ought to have given an opportunity to the defendant No.3 to cross-examine PW1, since the rights of the parties are involved in the suit schedule property. He further contended that though the learned counsel for the defendant No.3 was ready to cross-examine PW1, when the counsel reached to the Court at 12 noon, the cross- examination of PW1 was taken as nil and was posted for evidence of the defendants. Therefore, he sought to quash the impugned order by allowing the writ petitions.
9. Per contra, Sri.V.B.Shivakumar, the learned counsel appearing for the plaintiff - respondent No.1 sought to justify the impugned order and contended that in spite of granting opportunities, the petitioners have not utilized the same. He further contended that the suit was filed in the year 2006 and we are in 2017 and the defendants are not at all proceeding with the case. Therefore, he sought to dismiss the writ petitions.
10. Having heard the learned counsel for both the parties, it is not in dispute that the respondent N.1, who is the plaintiff, filed the suit for a declaration that he is the owner;
for permanent injunction and other reliefs, contending that he is the owner and in possession of the suit property. The same is disputed by the defendants by filing written statement, contending that the earlier suit for declaration filed by the plaintiff was dismissed and upheld by this Court. On 27.4.2016, the matter was posted for cross- examination of PW1. The case was kept by after calling the matter in morning session. When the counsel for the defendant No.3 returned at 12 noon, he came to know that the matter was adjourned taking further cross-examination of PW1 as nil. Therefore, the applications came to be filed for reopen and recall PW1. The Trial Court by the impugned order dismissed the applications mainly on the ground that PW1 is a senior citizen. Though the Court had given several opportunities, the defendants had not utilized the same to cross-examine PW1 and they are dragging the matter without any justification. Taking note of the fact that the suit was filed for declaration of title in respect of the immovable property, the Trial Court ought to have given an opportunity to the defendant No.3 to cross- examine PW1, by imposing costs.
11. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In the present case, though the learned counsel for the defendant No.3 was ready in the morning, the case was called and passed over. When he reached the court hall at 12 noon, the matter was called and further cross-examination of PW1 was taken as nil. The Trial Court should not have been too technical and ought to have given one more opportunity to the defendant No.3 to cross-examine PW1 by imposing costs. Same has not been done. Taking into consideration the rights of the parties are involved in respect of the immovable property and the fact that the suit is of year 2006, the Trial Court ought to have imposed cost and permitted the defendants to cross-examine the PW1.
12. Sri.Subbanna, the learned Senior Counsel appearing for the petitioners fairly submits that if an opportunity is given the defendants will cross-examine PW1 on day to day basis in three dates of hearing. Sri.Shivakumar, the learned counsel for the plaintiff – respondent No.1 submits that since the matter is of the year 2006, we are in 2017, the Trial Court may be directed to dispose of the suit after providing opportunity to the defendants to cross-examine PW1. The said submissions are placed on record.
13. In view of the aforesaid reasons, the writ petitions are allowed. The impugned order passed by the Trial Court dated 23.7.2016 on I.A.s is quashed. I.A.s filed under Section 151 of the CPC and under Order 18 Rule 17 read with Section 151 of the CPC for reopen and recall are allowed, subject to payment of cost of `3,000/- (Rupees three thousand only), payable by the defendant No.3 to the plaintiff on the next date of hearing and subject to the condition that the defendants shall cross-examine the PW1 on 14.1.2018 or any other date to be fixed by the learned Judge and compete the cross-examination of PW1 in three dates of hearing and the matter has to be posted for the evidence of the defendants. The suit is of the year 2006 and we are in 2017. Therefore, the Trial Court is directed to expedite of matter itself in accordance with law.
14. Since the main matters are disposed of, the question of rectification of objections would not arise and I.A.No.1/2017 stands disposed of.
Sd/- JUDGE AHB