IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.49871/2016 (GM-CPC) Between:
Sri Anupam Premchand Lunavat, S/o Shri Premchand Lunavat, Aged about 48 years, Residing at Flat No.901, The Zen Dubai Marina, DUBAI, Represented by his Power of Attorney Holder Sri G. Sampathraj, S/o P. Gheesulal, Aged 70 years, Residing at No.9/10A, 8th Main, 2nd Block, Jayanagar, Bangalore. … Petitioner.
(By Sri Rajadithya Sadasivan, Advocate) And:
1. Sri S.A. Rajashekar, S/o Late S.K. Appaiah, Major, No.101, Lalbagh Siddapur, I Block, Jayanagar, Bangalore – 560 011.
2. Sri G. Rangadev, S/o Late S.K. Appaiah, Major, No.18, Lalbagh Siddapur, I Block, Jayanagar, Bangalore – 560 011.
3. Sri S.A.Suryakantha, S/o Late S.K. Appaiah, Major, No.10, Lalbagh Siddapur, I Block, Jayanagar, Bangalore – 560 0 11.
4. M/s. Raja Housing Limited., Raja Mahalakshmi, F-2, 12, Basappa Road, Shanthinagar, Bangalore – 560 027.
Represented by its Managing Director.
5. Smt. Susheela Chandrashekar, W/o S.A. Chandrashekar, Major, Raja Prakruthi, Apt. No.A-304, No.157, 4th Cross, 1st Block, Jayanagar, Bangalore – 560 011.
6. Smt. S. Rashmi Arvind, W/o Arvind, Major, Raja Prakruthi, Apt. No.A-304, No.157, 4th Cross, 1st Block, Jayanagar, Bangalore – 560 011.
7. Smt. Banu Datta, W/o B.L. Datta, Major, Raja Prakruthi, Apt. No.A-304, No.157, 4th Cross, 1st Block, Jayanagar, Bangalore – 560 011.
8. Smt. C. Seema, D/o S.A. Chandrashekar, Major, Raja Prakruthi, Apt. No.A-304, No.157, 4th Cross, 1st Block, Jayanagar, Bangalore – 560 011. … Respondents (By Sri B.M. Arun, Advocate for R5 to R8; Notice H/S to R1 & R2 v/o dated 06.11.2019; R3 & R4 – Served and Unrepresented) This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the common order dated 17.06.2016 vide Annexure-A dismissing I.A. No.11, 12, 14 and 15 in Annexure-E, F, H & J passed by the XI Additional City Civil Judge, Bangalore (CH-8) in O.S. No.8037/2008 and consequently, allow the applications I.A. Nos.11, 12, 14 & 15 vide Annexure-E. F, H & J on the file of the XI Additional City Civil Judge, Bangalore (CH-8) in O.S. No.8037/2008 and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner who is the plaintiff before the trial court has assailed the order passed on I.A.No.11 to 15, whereby the application filed by the plaintiff to recall the order dated 29.11.2016 closing the plaintiff’s side and posting the matter for defendant evidence (I.A.No.11), the application filed under Order XVIII Rule 17 CPC seeking permission to lead further evidence (I.A.No.12), application filed under Order VII Rule 14 (3) CPC seeking permission to produce the copy of the Passport (I.A.No.14) and application filed under Order VII Rule 14 (3) r/w 151 CPC to produce the bank statement of the plaintiff have been rejected.
2. It is to be noted that the plaintiff had filed I.A.No.13 under Section 65 (c) of the Indian Evidence Act seeking to lead secondary evidence, which however he does not intend to press. It is submitted that in the light of original Passport itself being produced, he does not intend to seek for any relief as regards I.A.No.13. Accordingly, the impugned order insofar as I.A.No.13 is not interfered with.
3. It is the contention of the plaintiff that the suit was filed through his Power of Attorney and the Power of Attorney was executed when the plaintiff was in Bangalore on 04.12.2008. It is submitted that stamping of his Passport would indicate that the plaintiff was in Bangalore on 02.12.2008. During the course of evidence, it appears that plaintiff through his GPA holder had answered that GPA was executed in Dubai. In light of the said answer, in order to clarify that GPA was executed in India, the plaintiff had sought for recalling of the order closing his side of evidence and posting the matter for defendants evidence by filing I.A.No.11. I.A.No.12 was filed seeking permission for the plaintiff to lead further evidence. The plaintiff wanted to produce the copy of the Passport with relevant entries and hence I.A.No.14 had been filed. I.A.No.15 has been filed to produce the bank statement to place reliance on the Air tickets.
4. It is noticed that the impugned order is a cryptic order, passed without assigning any reasons. The case that is made out by the plaintiff to the effect that the Passport has entries to indicate that the plaintiff was in India when the GPA was executed is a contention that ought to have been considered as sufficient reason for reopening the case as already the plaintiff has led the evidence and his side was closed and to permit the plaintiff to produce the Passport. It is further to be noticed that in the light of answer stated to have been given by the GPA holder, the validity of the power of attorney itself is in issue and if that were to be true, the right to prosecute on the basis of such GPA is also a matter that would arise for consideration.
5. Accordingly, the impugned order is set aside.
I.A.Nos.11, 12, 14 and 15 are allowed and the case is permitted to be reopened. The plaintiff is permitted to lead further evidence and the documents sought to be produced are permitted.
The petition is disposed off subject to the above observations.
Sd/- JUDGE Np/-