IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NOS.11818-11819 OF 2019 (GM-CPC) & W.P.NO.13211 OF 2019 BETWEEN 1. N.GANESH, S/O LATE B.K.NATARAJ, AGED ABOUT 62 YEARS, 2. SOWJANYA GANESH, D/O N.GANESH, AGED ABOUT 30 YEARS, BOTH RESIDENTS OF NO.86, FIRST FLOOR, 10TH CROSS, 1ST MAIN, MALLESHWARAM, BENGALURU-560003. ... PETITIONERS (BY SRI.MANIAN K.B.S, ADVOCATE) AND 1. G.SRINIVAS, AGED ABOUT 45 YEARS, S/O GANESH, RESIDENT OF PATTANAGERE VILLAGE, RR NAGAR POST, BENGALURU – 560001.
2. REMCO (BHEL) HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., A SOCIETY REGISTERED UNDER THE KARNATAKA CO-OPERATIVE SOCIETIES ACT, (REGD NO.B/ARBI/RIWHCS 1640/69-70), NO.364, 5TH MAIN, RPC (REMCO) LAYOUT, VIJAYNAGAR 2ND STAGE, BENGALURU-560040.
BY ITS PRESIDENT. ... RESPONDENTS (BY SRI.B.S.NAGARAJ, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ON I.A. NO.11 TO 13 PASSED BY THE HON’BLE XXXIX ADDL. CITY CIVIL JUDGE, BENGALURU [CCH-40] DTD 25.01.2019 IN O.S.7209/2014 VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners being the plaintiffs in a bare injunctive suit in O.S.No.7209/2014, are invoking the writ jurisdiction of this court seeking to lay a challenge to the order dated 25.01.2019 made by the learned XXXIX Addl. City Civil Judge, Bengaluru on contesting respondents application Nos.11 to 13 filed for re-opening of the case and for leading further evidence on cost. After service of notice, the respondents having entered appearance through their counsel, resist the Writ Petitions.
2. The learned counsel for the petitioners finds fault with the impugned order on the following points:
(a) that the matter was posted for final arguments and therefore, the subject applications could not have been favoured by the court below in view of the decision of the Apex Court in the case of Ram Rati Vs. Mange Ram and Others, (2016) 11 SCC 296;
(b) the applications for production of Rulings of the Court by way of precedent could not be the subject matter of evidence at all and therefore, the application for production of additional evidence ought to have been rejected; and (c) the provisions of section 41 of the Indian Evidence Act permit production of only judgments in rem as and to be the evidence.
So arguing, he seeks allowing of the Writ Petitions.
3. Learned counsel for the contesting respondent per contra contends that the petitioners having been accepted the costs imposed by the court below should be treated as having waived their right to challenge the impugned order; the application for production of judgments by way of precedential evidence even otherwise also would not cause any prejudice to the other side inasmuch as the court has left the liberty to contend to the contrary, and thirdly, it is not an inviolable rule that is only the judgments in rem that can be pressed into evidence and no other judgments. So contending, he seeks dismissal of the Writ Petitions.
4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have perused the Petition Papers and I have adverted to the decision of the Apex Court and the provisions of section 41 of the Indian Evidence Act, 1872.
5. The first contention that the court could not have favoured these applications when the matter was posted for final arguments is liable to be negatived in view of the decision of the Apex Court in the case of K.VELUSAMI vs.
N.PALANISAMY, (2011) 11 SCC 275; the reliance of the petitioners on the decision of the Apex Court in the case of RAM RATI (supra) does not much come to their assistance inasmuch as it follows the ratio in Palanisamy and that the suit is not reserved for judgment, but posted for arguments. Lord Halsbury in Quinn V/s Leathem (1901) AC 495 has observed that a decision is an authority for the proposition that it actually lays down in its fact matrix and not for all that logically follows therefrom. Therefore much milk cannot be derived from the ruling cited from their side.
6. The second contention that the provisions of section 5 of the Indian Evidence Act, 1872 admit only production of evidence and not of law, is true. May be that, the respondent side has produced certain decisions/rulings by way of precedential evidence and not factual evidence; that per se is not a ground for granting indulgence in the matter when no prejudice is occasioned thereby to the petitioners. This apart, the Court below has reserved liberty to them to contend to the contrary during the hearing of the suit.
7. The last contention that section 41 of the Indian Evidence Act, 1872 admits only judgments in rem namely those which have been given in admiralty, insolvency, matrimonial and probate jurisdictions, is true going by its text. However, Section 43 is in the nature of an exception to the said proposition and it allows all other judgments in evidence subject to rule of admissibility & relevancy. This is the opinio juris of experts such as Woodroff & Amir on Law of Evidence.
8. The contention that the petitioners have accepted the cost awarded by the court and therefore they have waived their right to continue the challenge to the impugned order, ordinarily would have gained acceptance, but the cost is received after the filing of the writ petitions and therefore such a contention cannot be countenanced straightaway. This apart, the petitioners have got an opportunity to lay a challenge to the impugned order if and when they suffer an adverse decree at the hands of the trial court, as provided u/s. 105 r/w Order XLIII Rule 1A of CPC 1908.
In the above circumstances, these Writ Petitions stand disposed off.
The observations made herein above having been confined to the disposal of these Writ Petitions and being cursory, shall not influence the trial and decision making of the suit.
It is open to the petitioners to request the trial court to have the matter disposed off, expeditiously.
No costs.
Sd/- JUDGE cbc