IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.34817-34818/2017 AND WRIT PETITION No.36008/2017(GM-CPC) BETWEEN:
1. M. KRISHNA SWAMY, S/O LATE D. M. MUNIYAPPA, AGED 67 YEARS, RESIDING AT 907, 6TH MAIN, VIJAYANAGAR, BANGALORE-560040.
2. M. VENKATA SWAMY, S/O LATE D. M. MUNIYAPPA, AGED 69 YEARS, RESIDING AT NO.250, 2ND BLCOK, R. T. NAGAR, BANGALORE-560032.
(BY SRI M. GANESH, ADVOCATE) AND:
1. GANESHA, W/O CHANNAPPA, MAJOR, ... PETITIONERS RESIDING AT T. BEGUR VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562123.
2. SMT. GOWRAMMA, W/O ANJINAPPA, MAJOR, RESIDING AT NO.60/2, “SHKHAMBARINAGAR”, SARAKKI, 7TH CROSS, 80 FT. ROAD,J. P. NAGAR 1ST PHASE, BANGALORE-560078.
3. SMT. SEEMA-B-GAJARIA, W/O LATE BHARATH-R-GAJARIA, AGED 61 YEARS, 4. MANISH-B-GAJARIA, S/O LATE BHARATH-R-GAJARIA, AGED 41 YEARS, 5. GIRISH-B-GAJARIA, S/O LATE BHARATH-R-GAJARIA, AGED 31 YEARS, RESPONDENT’S NO.3 TO 5 RESIDING AT NO.403, “SHANTHINIKETHAN APARTMENTS” NO.294, 34TH CROSS, JAYANAGAR 7TH BLOCK, BANGALORE-560082.
... RESPONDENTS **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE JUDGMENT AND ORDER PASSED ON I.A.NO.13, 14, 15 DATED 7.7.17 VIDE ANNEXURE-P PASSED IN O.S.NO.76/1997 BY LEARNED ADDITIONAL CIVIL JUDGE & JMFC, NELAMANGALA BANGALORE RURAL DISTRICT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiffs filed the present writ petitions against the order dated 7.7.2017 on I.A. Nos.13, 14 and 15 made in O.S. No.76/1997 on the file of the Addl. Civil Judge & JMFC, Nelamangala rejecting the applications filed by the plaintiffs.
2. The present petitioners who are the plaintiffs filed O.S. No.76/97 for declaration that the sale transactions effected as per the schedule annexed to the plaint i.e., three sale deeds dated 30.9.1995 and another sale deed dated 5.10.1995 in respect of Sy.Nos.73, 87, 84 are null and void, contending that the plaintiffs are the owners in possession of the agricultural lands morefully described in the schedule to the plaint and the defendants have no manner of right, title and interest in respect of the suit schedule properties and therefore filed the suit for the releifs sought for. The defendants filed the written statement and denied the plaint averments and contended that the defendants are the owners in possession and enjoyment of the suit schedule properties by virtue of the registered gift deed dated 24.10.1927 and the suit filed by the plaintiffs is not maintainable and therefore sought for dismissal of the suit.
3. After completion of evidence on both sides, when the matter was posted for arguments, the plaintiffs filed I.A. No.13 under Section 151 of Code of Civil Procedure to re-open the case and I.A. No.14 under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure to recall and re-examine PW.1 and I.A. No.15 under Order 7 Rule 14A read with Section 151 of Code of Civil Procedure to permit PW.1 to produce the additional documents, contending that the suit filed by the plaintiffs against the defendants for nullity of registered sale transactions effected among the defendants in respect of the suit schedule properties; The defendants have entered appearance and filed their counter; The plaintiffs have lead the evidence and marked the documents - Ex.P1 to Ex.P13 dated 5.7.2017; In the meanwhile, the defendants in the cross-examination denied certain facts which are within their knowledge only to mislead the Court; In order to counter the misleading statements of the defendants, documents are sought to be produced for real adjudication of the dispute between the parties and therefore sought for allowing the applications.
4. The defendants filed objections to the I.As. and contended that the suit was filed in the year 1997 for the relief of bare injunction. After issuance of notice, written statement was filed and issues were framed and evidence on the side of the plaintiffs was closed by marking certain documents and plaintiffs were cross-examined by the defendants and the evidence on the side of the defendants was also closed and at that juncture, the plaintiffs filed I.A. for recall and re-open the above case for production of some more additional documents just to fill up the lacuna. The 2nd defendant also stated in the objections that there is no pleading regarding the documents produced by the plaintiffs and the documents are not necessary to adjudicate the case and the applications are filed only to protract the proceedings and the documents sought to be produced are irrelevant and therefore sought for dismissal of the applications.
5. The trial Court considering the applications and the objections filed by the parties by the impugned order dated 7.7.2017 rejected all the three applications filed by the plaintiffs. Hence the present writ petitions are filed.
6. I have heard the learned counsel for the petitioners – plaintiffs.
7. Sri M. Ganesh, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the applications filed by the plaintiffs is erroneous and contrary to the material on record. He further contended that the observations made by the trial Court that the matter is of the 1997 and therefore I.As. cannot be filed is contrary to the Rules provided under the Civil Rules of Practice. He further contended that the learned Judge has misunderstood the meaning of title to property which is required to be established and has not applied judicial mind on the aspect. He would further contend that the learned Judge misunderstood scope of cross-examination and production of documents as provided under the law. The trial Court ought to have allowed the applications in order to do justice between the parties. He further contended that the impugned order passed by the trial Court rejecting the applications is erroneous and contrary to law and therefore sought to allow the writ petitions by quashing the impugned order.
8. Having heard the learned counsel for the petitioners, it is not in dispute that the plaintiffs filed the suit for declaration that the sale transaction effected as per the schedule annexed to the plaint i.e., three sale deeds dated 30.9.1995 and another sale deed dated 5.10.1995 in respect of Sy.Nos.73, 87, 84 are null and void, contending that the plaintiffs are owners of the suit schedule properties and they are in possession and enjoyment of the same and the defendants have no right to interfere and the sale deeds made in favour of the defendants as stated supra are null and void. The defendants denied the averments made in the plaint and contended that they become the owners by virtue of the registered gift deed dated 24.10.1927 and contended that the very suit filed by the plaintiffs is not maintainable.
9. It is also not in dispute that both the plaintiffs and the defendants adduced their evidence and produced respective documents and when the matter was posted for cross-examination, at that stage, the present three applications are filed by the plaintiffs under Section 151 of Code of Civil Procedure to re-open the case and under Order 18 Rule 17 r/w Section 151 of Code of Civil Procedure to recall and re-examine PW.1 and under order 17 Rule 14A r/w Section 151 of Code of Civil Procedure to produce additional documents. In all the applications, the plaintiffs have not stated which are the documents to be produced and what is relevance of the said documents to the suit and why those documents are not produced for the last 20 years when the suit was pending between the parties. Absolutely no reasons are assigned to recall, re- open and production of the documents at the belated stage.
10. The trial Court considering the application and the objections by the impugned order has recorded a finding that on perusal of the order sheet, it is reflected that the plaintiffs were given sufficient opportunity during the examination-in-chief and furthermore they had filed I.As. to recall and reopen the stage to which the defendants had submitted no objection. It is further observed that the plaintiffs were given sufficient time and opportunity to adduce their evidence. The suit is of the year 1997 and when the stage is set for arguments, the plaintiffs have cropped up with these applications. When a suit is instituted, it is the duty of the plaintiffs to be ready with all the documents which are necessary for adjudication of the matter. In this regard, the plaintiffs were given good number of chances, but they have failed to produce the documents. It is further observed that a party who wants to produce documents at a later stage of suit proceeding must satisfy the court with convincing reasons that he was prevented by sufficient cause from producing the same earlier. Applying these settled legal principles in the present case, the plaintiffs have not whispered anything as to the inordinate delay in production of the documents. The plaintiffs ought to have produced the documents at the very stage of filing of the suit or when the previous applications were made for recall and reopen.
11. The trial Court further observed that the defendants have already led evidence and the plaintiffs had also conducted cross-examination. The plaintiffs at this stage of the proceedings have come up to dilute the cross- examination done in the matter and considering the age of the suit, these applications deserve to be rejected and accordingly the trial Court rejected the applications.
12. The material on record clearly indicates that the suit was filed as long back as in the year 1997 and more than 20 years elapsed. When the matter was posted for arguments, at that stage, the present applications are filed. When the plaintiffs were not diligent in production of the documents which are required to establish their case, it is not open for them to drag on the proceedings and produce at the later stage when the main suit itself posted for arguments and that too after the lapse of 20 years.
13. The Hon’ble Supreme Court considering the provisions of Order 17 Rule 1 and Order 18 Rule 17 of Code of Civil Procedure in the case of GAYATHRI .vs. M. GIRISH reported (2016)14 SCC 142 held as under:
7. In K.K. Velusamy [K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 : (2011) 3 SCC (Civ) 665] , while dealing with the power of the court under Order 18 Rule 17, this Court held that: (SCC pp. 281-82, paras 9-10) “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 [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 motu, 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.”
(emphasis in original) 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, reopening, 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.
This extract is taken from Gayathri v.
M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 147
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 18 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: (SCC p. 7, para 15) “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 the 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.”
This extract is taken from Gayathri v.
M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 147 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.
This extract is taken from Gayathri v. M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 148 10. In this context, we may profitably reproduce a passage from Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [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.”
This extract is taken from Gayathri v.
M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 148 11. In Noor Mohammed v. Jethanand [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.”
14. Taking into consideration the relief sought in the present suit and as the matter is posted for arguments and in view of the dictum of the Hon’ble Supreme Court stated supra, the impugned order passed by the trial Court rejecting the applications is in accordance with law. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The petitioners have not made out any ground to interfere with the impugned order passed by the trial Court in exercise of the powers under Article 227 of the Constitution of India.
15. Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE gss/-