IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.1348 OF 2019 (GM–CPC) BETWEEN:
SRI CHANDRANNA AGED ABOUT 53 YEARS PROPRIETOR OF CHANDRU TAILOR NO.6/2, GROUND FLOOR OPPOSITE: BWSSB WATER TANK ROAD RESERVOIR ROAD KUMARA PARK WEST BANGALORE – 560 020. … PETITIONER (BY SRI ABDUL AMEEN M , ADV FOR SMT RAKSHITHA D J.,) AND:
1. SMT VISHALAKSHMAMMA W/O LATE ANNAYAPPA AGED ABOUT 85 YEARS 2. SMT SAROJA S W/O LATE SRINIVASAMURTHY AGED ABOUT 64 YEARS BOTH ARE RESIDING AT NO.6/2, GROUND FLOOR RESERVOIR ROAD KUMARA PARK WEST BANGALORE – 560 020. … RESPONDENTS (BY SRI.SRIKANTH RAO, ADV.) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash/set aside the order dated 07.01.2019 on application dated 02.01.2019 S.C.No.837/2012 passed by the VIII Addl. SCJ & XXXIII ACMM, Bangalore produced at Annexure – F to the writ petition, consequently permit the petitioner to lead evidence and contest the case on merits.
This Petition coming on for orders this day, the Court made the following:-
ORDER Sri.Abdul Ameen M, learned counsel for the petitioner. Sri Srikanth Rao, learned counsel for the respondent.
2. With regard to the office objections, learned counsel for the petitioner submits that in view of Section 7(b)(iv) of the Civil Procedure Code, 1908 (hereinafter as the ‘Code’ for short, the provision of Section 155 do not apply in respect of an order passéd by the Court of Small Causes. In view of such submission, office objection is ignored.
3. Petition is admitted for hearing. With consent of the parties, the same is heard finally.
4. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 07.01.2019 passed by the Trial Court, by which the application preferred by the petitioner under Order XII Rule 6 of Code has been rejected.
5. Learned counsel for the petitioner submitted that petitioner had filed an application under Order XII Rule 6 of the Code on 02.01.2019 and arguments were heard on the aforesaid application on 03.01.2019 and the case was fixed for orders on 05.01.2019. However, the trial Court passed the order on 07.01.2019 and even, the right to adduce evidence of the petitioner was closed. It is further submitted that on 02.01.2019, the case was not fixed with regard to plaintiff’s evidence. Therefore, right to adduce evidence of the petitioner could not have been closed. It is further submitted that if the petitioner is granted one more opportunity, he shall adduce evidence. On the other hand, learned counsel for the respondent has opposed the prayer and has submitted that suit for eviction filed before the Court of Small Causes was of the year 2012 and since, 2012 the proceedings is being delayed on account of dilly dally tactics being adopted by the petitioner.
6. I have considered the submissions made by learned counsel for the parties. From perusal of the order sheets, it is evident that on 02.01.2019 the case was not posted for recording of petitioner’s evidence and was listed for consideration of application under Order XII Rule 6 of the Code. However, the trial Court heard the arguments on 02.01.2019 and 03.01.2019 and eventually passed an order on 07.01.2019 and rejected the application filed by the petitioner under Order XII Rule 6 of the Code and has closed the right of the petitioner to adduce evidence. The aforesaid order suffers from the procedural irregularity and therefore, the impugned order insofar as it pertains to the closure of the right of the petitioner to adduce evidence cannot be sustained in the eye of law. It is accordingly quashed and set-aside. Taking into account the fact that the suit for eviction before the Court of Small Causes was filed in the year 2012, in the interest of justice, I deem it appropriate to grant one more opportunity to the petitioner to adduce evidence. Petitioner is therefore directed to produce his entire evidence before the trial Court on 17.01.2019. Needless to state in case the petitioner fails to produce the evidence before the trial Court on 17.01.2019, his right to adduce evidence shall deemed to have been closed. On the aforesaid date, the trial Court shall permit the respondent to cross examine the witnesses of the petitioner and thereafter, shall proceed to decide the suit, preferably within a period of four weeks thereafter.
With the aforesaid directions, the petition is disposed of.
Sd/- JUDGE brn