IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.37157/2018 (GM – CPC) BETWEEN:
1. Ms. R.SHANTHI D/O RAMACHANDRAN, AGED 26 YEARS, R/AT SALARPURIA GREENAGE APARTMENTS, BA 1401, 14TH FLOOR, HOSUR ROAD, BOMMANAHALLI, BANGALORE-560068 REP. BY GPA HOLDER PETITIONER No.2 AGED ABOUT 31 YEARS.
2. Ms. R.RAMYA REDDY D/O RAMACHANDRAN, AGED ABOUT 31 YEARS, R/AT SALARPURIA GREENAGE APARTMENTS, BA 1401, 14TH FLOOR, HOSUR ROAD, BOMMANAHALLI, BANGALORE-560068 ... PETITIONERS [BY SMT.R.RAMYA REDDY, PARTY – IN – PERSON.] AND:
ASHOK PADMANABHAN MAVICHERI S/O V.P.PADMANABHAN, AGED ABOUT 38 YEARS, PRESENTLY R/AT FLAT No.108, AISHWARYA EASTWOOD APARTMENTS, HSR LAYOUT, SECTOR – II, AGARA VILLAGE, BENGALURU-560102 REP. BY HIS POWER OF ATTORNEY HOLDER, Mr. HARIPRASAD C.R., S/O RAVINDRAN, R/AT NO.5-49, ANNAPOORNESHWARI RESIDENCY, DEVARABEESANAHALLI, OUTER RING ROAD, BANGALORE-560103 …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 28.07.2018 IN O.S.NO.3796/2017 ON I.A.NO.VI PASSED BY THE CITY CIVIL JUDGE (CCH-10) BANGALORE VIDE ANNX-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners have called in question the correctness and legality of the order dated 28.07.2018 passed on I.A.No.6 in O.S.No.3796/2017 on the file of the City Civil Judge (CCH-10), Bangalore, vide Annexure-F to the writ petition inter alia seeking a direction to the Trial Court to give an opportunity to the petitioners to cross examine PW-1 and adduce the evidence of the petitioners in O.S.No.3796/2017 pending before the Trial Court.
2. The undisputed facts are:
The respondent has filed O.S.No.3796/2017 before the Trial Court against the petitioners seeking for ejection of the suit property Flat No.BA 1401, Salarpuria Greenage Apartments, 14th Floor, Hosur Main Road, Bommanahalli, Bangalore. The petitioners are claiming to be the tenants under the respondent and entered into a rental agreement by paying security deposit of Rs.80,000/- (Rupees eighty thousand only) and paying monthly rent of Rs.34,000/-. It is contended by the petitioners that the matter was posted for cross examination of PW-1 on 07.07.2018 and 21.7.2018. The 2nd petitioner was unable to appear before the Trial Court due to ill health and hence the Trial Court has taken cross examination as nil and posted for arguments on 24.7.2018. On 24.7.2018 I.A.No.6 was filed by the petitioners under Order XVIII Rule 17 of CPC to recall the order dated 21.7.2018 and permit the defendants to adduce evidence. I.A.No.6 was heard on 28.7.2018. It is recorded by the Trial Court that the matter was posted to produce document to make out defendant No.2 was not well on 07.07.2018 and 21.07.2018. However defendant No.2 has filed the same application with the verbatim copy of the affidavit dated 22.6.2018, whereby the Trial Court has allowed the I.A. filed by the defendant No.2 permitting to cross examine PW-1. The petitioners having partially cross examined PW-
1 sought for adjournment. The Trial Court not being satisfied with the cause shown for invoking the provisions of Order 18 Rule 17 of CPC, dismissed I.A.No.6. It appears I.A.No.7 has been filed under Order 18 Rule 17(1) of CPC again on 31.7.2018 seeking permission to lead evidence. As could be seen from the order sheet, the matter was adjourned to 07.08.2018 for orders. I.A.No.7 came to be allowed on 07.08.2018 and the matter is posted for defendants evidence.
3. In view of the orders passed on I.A.No.7 on 7.8.2018, the petitioners prayer to grant permission for the defendants to adduce evidence does not survive for consideration. As far as dismissal of I.A.No.6, the same cannot be held to be unsustainable for the reason that the petitioners despite providing opportunity to cross examine PW-1, failed to proceed with further cross examination and no satisfactory explanation is forthcoming for not availing the opportunity granted on 22.6.2018 allowing I.A. filed by the defendants under Order XVIII Rule 17 of CPC.
4. The said provision does not confer any right on the petitioners to recall the order and seek permission to lead evidence at their convenient time rather it is the power vested with the court to recall and examine any witness at any stage of the suit who has been examined and made to put such questions to him as the court thinks fit. Filing of successive/repetitive applications requires to be discouraged. Hence, no exception can be found with the order impugned dated 28.07.2018.
4. For the aforegoing reasons and observations, writ petition stands dismissed.
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JUDGE