IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NOS. 9924/2019 & 11417/2019 (GM-CPC) BETWEEN:
MR. M.R. PADMABNABHA S/O SHRI M RAMACHANDRA SETTY, AGED ABOUT 46 YEARS, NO.389, MARUTHI ROAD, SHANKAMBARINAGAR, I PHASE J P NAGAR, BANGALORE-560078 … PETITIONER (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE) AND:
MR. K. MINDER ALIAS MAHENDRA S/O MR KARAM SINGH NO.22, 2ND MAIN ROAD, AYYAPPA GARDEN SARASWATHI PURAM ULSOOR , BANGALORE-560008 (BY SRI. N D JAYAKUMAR, ADVOCATE) … RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 12.12.2018 PASSED IN IAs IN O.S.NO.26547 OF 2011 ON THE FILE OF 57TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE MAYO HALL UNIT BANGALORE AS PER ANNEXURE-F.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner-defendant has filed these writ petitions against the order dated 12.12.2018 rejecting his applications filed under Section 151 of CPC (Code of Civil Procedure, 1908) for reopening his case and permit him to examine the Bank Manager in support of his case and application filed under Order XVIII Rule 17 read with Section 151 of CPC to recall the order dated 07.11.2018 and permit him to examine the Bank Manager in O.S. No. 26547/2011 filed by the respondent-plaintiff herein on the file of the Principal City Civil Judge at Bengaluru City.
2. The respondent-plaintiff herein filed a suit for specific performance in O.S.No.26547/2011 to enforce the agreement dated 14.05.2005 contending that petitioner-defendant has received a sum of Rs.Twelve Lakhs on the same day. In spite of repeated demand made, the plaintiff has not executed the sale deed etc. The defendant filed Written Statement denying the plaint averments and contended that plaintiff filed frivolous, vexatious suit without any iota of truth and the suit is not maintainable sought for dismissal of the suit.
3. When the matter was posted for examination of the Bank Manager on 07.11.2018, the defendant and her counsel remained absent. The reasons assigned in the application/affidavit are that one of the colleagues of counsel appearing for the defendant before the trial Court met with an accident on the relevant day and therefore, they could not be present. The trial Court proceeded to reject the applications mainly on the ground that no supporting documents are produced in support of the explanation offered and therefore, the said contention cannot be accepted. Hence these writ petitions.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Vigneshwar S Shastri learned counsel appearing for the petitioner contended that the respondent-plaintiff filed a suit for specific performance based on the alleged agreement dated 14.05.2005. The same is disputed by the defendant by filing the Written Statement and contending that he is the absolute owner of the suit property. When the matter was posted on 07.11.2018 either the counsel representing the defendant or the defendant were present before the Court because of the fact that one of the colleagues of the defendant’s counsel met with an accident therefore they could not appear and trial Court discharged the evidence of the Bank Manager on the ground that none appears for the defendant or the counsel for the defendant. The trial court ought to have given an opportunity to the defendant to examine the Bank Manager who is a necessary and proper party to the proceedings. Since the rights of the parties are involved in respect of immovable property. Therefore, he sought to allow the petition.
6. Per contra, Sri. N D Jayakumar, learned counsel for the respondent sought to justify the impugned order and contended that in a specific performance suit, there is no need to examine the Bank Manager. Therefore, the trial court was justified in rejecting the applications as the defendant or his counsel have not produced any supporting documents in support of the alleged accident said to have been occurred. Therefore, he sought to dismiss the petition.
7. Having heard the learned counsel for the parties to the lis, it is an undisputed fact that the suit was filed in the year 2011 for specific performance to enforce the agreement dated 14.05.2005 said to have been executed by the defendant. The defendant denied the entire averments in the plaint and he is the absolute owner of the suit property. It is also not in dispute that when the matter was posted on 07.11.2018 for examination of Bank Manger by the defendant. Learned counsel for the respondent-defendant nor his counsel was present before the trial court therefore the evidence of the Bank Manager was discharged. Therefore the defendant filed two applications under Section 151 to reopen the case of the defendant and permit him to examine the Bank Manager and to recall the order dated 07.11.2018 on the ground that when the matter was posted for examination of Bank Manager the defendant or his counsel was unable to present before the Court as one of his colleagues Mr.Ramesh met with an accident before Vasanth Nagar. Therefore, he could not appear for the case. The trial court rejected the said applications mainly on the ground that no supportive document was produced for the alleged accident. When the rights of the parties are involved, in respect of the immovable property, the court cannot insist the member of the Bar to produce the proof for accident, when the counsel has filed an affidavit stating that one of his colleagues met with an accident, The learned trial judge ought to have provided an opportunity to the defendant to proceed with the case by examining the Bank Manager.
8. It is well settled law that 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 on technicality. 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. Therefore, the trial Court ought to have imposed the some costs and permitted the defendant to proceed with the case.
9. For the reasons stated above, the writ petitions are allowed. The impugned order dated 12.12.2018 made by the Principal City Civil Judge at Bengaluru City, rejecting the IAs filed by the defendant one under Section 151 of CPC and another a under Order XVIII Rule 17 read with Section 151 of CPC to recall the order dated 07.11.2018 and permit him to examine the Bank Manager in O.S. No. 26547/2011 are hereby quashed. Both the IAs are allowed subject to payment of cost of Rs.4000/- (Rs.2000/- on each application) and also to examine the Bank Manager on 15.04.2019 or any short date to be given by the learned judge.
10. It is made clear that the defendant shall ensure the presence of the Bank Manager on 15.04.2019 and for any unavoidable circumstances if the bank Manager is not present on that day, the learned trial judge may fix the any other day and that the Bank Manager should be present and the defendant shall proceed to examine the Bank Manager on the same day. The plaintiff shall cross- examine the Bank Manager on the very same day or any other day to be fixed by the learned trial judge in accordance with law.
Ordered accordingly.
Bsv Sd/- JUDGE