IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA Writ Petition Nos.36350 OF 2017 and 37532 – 37533 OF 2017 (GM-CPC) Between:
Smt.Puttagangamma @ Gangamma W/o Late Shivanna Aged about 81 years, Gollarapalya, Sondekoppa Post, Dasanpur Hobli, Bangalore North Taluk. …Petitioner (By Sri.Manjegowda, Advocate for Sri.Shreenivasa K.L, Advocate) And:
1. Smt.Neelambike W/o Late S.Neelakantaiah Aged about 61 years, 2. Sri.B.N.Nandeesh S/o Late S.Neelakantaiah Aged about 39 years, 3. Sri.B.N.Vijay S/o Late S.Neelakantaiah Aged about 35 years, Sl.no.1 to 3 are residing at No.664, 7th ‘A’ Main, Nagarbhavi 2nd Stage, 9th Block, Near Bande Maramma Temple, Bengaluru – 560 071.
4. Smt.B.N.Manjula D/o Late S.Neelakantaiah W/o Sreekanth Sharma Aged about 43 years, No.1037, 4th ‘M’ Block, Dr.Rajkumar Road, Rajajinagar, Bengaluru – 560 010.
5. Canara Bank Vijaynagar Branch, Bangalore – 560 040. Rep by its Manager Sri.Radhakrishna … Respondents These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the impugned order dated 06.07.2017 passed on I.A.No.13 to 15 filed under Section 151 CPC (I.A.No.13) under Order VII Rule 14(3) read with Section 151 of CPC and under Order XVIII Rule 17 read with Section 151 of CPC (I.A.No.15 in O.S.4864/2003 pending on the file of XIV Additional City Civil Judge (CCH-28), Bengaluru vide Annexure – N.
These Petitions coming on for Preliminary Hearing this day, the court made the following:
O R D E R The petitioner / plaintiff has filed these writ petitions against the order dated 06.07.2017 on I.A.Nos.13, 14 and 15 made in O.S.No.4864/2003 rejecting the applications filed to recall, re-open and under Order VII Rule 14 (3) read with Section 151 of Code of Civil Procedure and under Order XVIII Rule 17 read with Section 151 of Code of Civil Procedure.
2. The petitioner who is the plaintiff before the trial Court filed suit for declaration to declare that the sale deed dated 08.11.2001 alleged to have been executed by plaintiff in favour of defendant No.1 is null and void and not binding on the plaintiff and direct the Sub Registrar, Bangalore North Taluk to make a note of the said cancellation in its concerned books of entry and CD maintained in his office and direct the defendant to quit and deliver vacant physical possession of suit schedule property of the plaintiff and direct the defendant to pay mesne profit of Rs.5,000/- per month from the date of suit till realization.
3. The petitioner contends that she is in possession of the suit schedule property exercising all rights of ownership. The katha also changed in the name of the petitioner in respect of suit schedule property by the concerned Gram Panchayat. The petitioner also paid betterment charges to the BBMP through the defendant. The defendant has no right, title and interest in the suit property and had created some documents in order to cheat and deprive the plaintiff’s right over the suit property etc., therefore, the plaintiff / petitioner filed the suit for the relief prayed for.
4. The defendant No.1 filed the written statement and denied the plaint averments and contended that defendant No.1 is in peaceful possession and enjoyment of the suit property, the plaintiff having extinguished all her rights, has no claim upon the property belonging to the defendant. The suit filed by the plaintiff is barred by the limitation etc., sought for dismissal of the suit. The 2nd defendant also filed the written statement contending that first defendant has mortgaged the property in favour of 2nd defendant and 2nd defendant is in possession and enjoyment of the same therefore, sought for dismissal of the suit.
5. After completion of the evidence, when the matter was posted for arguments, at that stage the plaintiff filed three applications – I.A.No.13 filed under Section 151 of Code of Civil Procedure to re-call and re- open the case of plaintiff and permit her to lead further evidence, I.A.No.14 under Order VII Rule 14(3) read with Section 151 of Code of Civil Procedure to permit the plaintiff to produce the original documents and I.A.No.15 under Order XVIII Rule 17 read with Section 151 of Code of Civil Procedure to re-call PW1 for further examination-in-chief contending that though the suit was filed in the year 2003 to declare the sale deed dated 08.11.2001 alleged to have been executed by the plaintiff in favour of defendant No.1 is null and void and also for possession. When the affidavit of evidence was filed she got marked certain documents and she has been subjected for cross-examination and she never executed the alleged sale deed in favour of defendant No.1 and defendant No.1 created the sale deed by playing fraud and the plaintiff has denied the execution of aforesaid document. Therefore, she wanted to produce the sale deed executed by Gangamuniyappa and others in favour of plaintiff. Therefore, the plaintiff has filed the application to permit her to produce the sale deed and if the application is allowed, no prejudice would be caused to the defendants.
6. The said application was resisted by the defendants by filing their objections contending that the application filed for production of document is not connected to the suit and the plaintiff’s evidence and pleading are contradictory. The application filed is highly belated without any valid and justifiable grounds and sought for dismissal of the application. The trial Court after considering the applications and objections by the impugned order dated 06.07.2017 rejected the applications filed by the plaintiff/petitioner. Hence, the present writ petitions are filed by the petitioner.
7. I have heard the learned counsel for the petitioner.
8. Sri.Manjegowda, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the applications filed by the plaintiff for recall, re-open and production of documents is erroneous and contrary to material on record. He has further contended that the impugned order passed is not a speaking order. He further contended that though the plaintiff produced the original sale deed dated 11.03.1991 along with I.A.No.14 but predecessor in office has orally asked to produce the copy of the said sale deed and further instructed to produce the original after passing of orders on the application, hence plaintiff has made corrections in the application as Xerox copy in place of original in the list mentioned in the said application and the same has not been considered by the trial Court. He would further contend that that the applications filed by the plaintiff are bonafide seeking various reliefs sought in the respective applications. Since the suit filed by the plaintiff challenging the very execution of sale deed alleged to have been executed by her in favour of defendant No.1 to declare that sale deed dated 08.11.2001 is null and void and not binding upon the plaintiff and the trial Court has not considered this aspect. Therefore, he sought to quash the impugned order by allowing these writ petitions.
9. Having heard the learned counsel for the petitioner, it is not in dispute that the petitioner has filed the suit for declaration that the sale deed dated 08.11.2001 alleged to have been executed by her in favour of defendant No.1 is null and void and direct the defendant to deliver vacant physical possession of suit schedule property and also to pay the damages at the rate of Rs.5,000/- per month who raised various contentions in the plaint and the same was denied by the defendants by filing written statement. Based on the pleadings, the trial Court framed six issues on 28.07.2005. After completion of the evidence, when the matter was posted for final arguments, these applications were filed by the plaintiff. The trial Court after considering the applications and objections, by the impugned order has rejected the applications mainly on the ground that on perusal of the entire materials, pleadings and documents, no doubt the plaintiff has filed I.A.Nos.13 to 15 for recall, reopen and permission to produce the original documents i.e., the sale deed dated 11.03.1991 executed by Gangamuniyappa and others in favour of the plaintiff. But on perusal of the document produced by the plaintiff is a Xerox copy and has not produced the original document as stated in I.A.No.14. Moreover, the similar application which was sought to be filed by the plaintiff on I.A.No.11, the trial Court by order dated 19.09.2016 rejected the application. The said order passed by the trial Court rejecting the application has reached finality and non challenged the said order and production of original document as prayed in I.A.No.14 and that he has produced original document is not correct. Further more the suit was filed in the year 2003 and even after lapse of 13 years, the plaintiff has not at all taken any steps in respect of these documents and when the case was posted for final arguments, at that stage these applications are filed. Therefore, the trial Court has rejected the applications.
10. Sri.Manjegowda learned counsel for the petitioner fairly submits that that the matter was adjourned to 28th October of this month. The suit was filed in the year 2003 and after completion of evidence, the matter was posted for arguments. The plaintiff has filed the application to produce the document at the fag end of the case. Similar application I.A.No.11 filed by the plaintiff came to be rejected on 19.09.2016 and there is no cause of action to file the present application. It is also not in dispute that the order passed by the trial Court on 19.09.2016 was subject to writ petition before this Court in W.P.No.1511/2007.
11. The Hon’ble Supreme Court while considering the provisions under Order XVIII Rule 17 of CPC in the case of Gayathri /vs./ M.Girish reported in (2016) 14 SCC 142, has held as under:
7 In K.K. Velusamy (2011) 11 SCC 275 : (2011) 3 SCC (Civ) 665 while dealing with the power under Order XVIII Rule 17, this Court held that:-
“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 ] (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 moto, 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.”
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, re-opening, 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.
8. In this context, we may fruitfully refer to Bagai Construction .v. Gupta 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 XVIII 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:
“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 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.”
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.
10. In this context, we may profitable reproduce a passage from 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.”
11. In 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.”
12. In view of the aforesaid reasons, the impugned order passed by the trial Court is just and proper. The petitioner has not made out any prima facie case to interfere with the finding of fact arrived at by the Court below exercising the powers under Article 227 of the Constitution of India.
Accordingly, writ petitions are dismissed.
SD/- JUDGE UN