IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.18 OF 2019 (GM - CPC) AND WRIT PETITION NO.672 OF 2019 BETWEEN:
SRI. CHANDRAPPA, S/O BASAPPA, AGED ABOUT 60 YEARS, R/O VADERAHATTUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT – 577 217. … PETITIONER (BY SRI.VIJAYA KUMAR K., ADV.) AND:
SRI. VALYANAKA, S/O LATE HEMLA NAIK, AGED ABOUT 62 YEARS, R/O VADERAHATTUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT – 577 217. … RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN O.S.NO.72/2008 PENDING ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, AT HONNALI AND SET ASIDE THE ORDER DATED 12.12.2018 PASSED ON I.A.NO’S 17 AND 18 FILED BY THE PETITIONER UNDER SECTION 151 AND UNDER ORDER 18 RULE 17 OF THE CODE OF CIVIL PROCEDURE (IMPUGNED AS ANNEXURE – A) AND ALLOW THE SAID APPLICATIONS PRODUCED AS ANNEXURE – D & F AND ETC., THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Vijaya Kumar.K, learned counsel for the petitioner.
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the respondent.
2. Heard the learned counsel for the petitioner on the question of admission.
3. In these petitions under Article 227 of the Constitution of India, the petitioner/defendant has assailed the validity of the order dated 12.12.2018 passed by the Trial Court on the application filed under Order XVIII Rule 17 read with 151 of the Code of Civil Procedure 1908, for re-opening of the evidence of the defendant to lead further evidence of DW.1 to get marked some important documents on his behalf.
4. Facts giving rise to the filing of this petition briefly stated are that on 27.03.2008 the respondent/plaintiff filed a suit against the petitioner herein seeking relief of declaration that the sale deed dated 11.06.1979 executed by Halanaik in favour of the petitioner herein is null and void and is not binding on the plaintiff. On 28.05.2008, written statement was filed by the petitioner. On 08.06.2018 after the parties had adduced evidence, the petitioner filed an application to re-open and for re-examination of the defence witness No.1 on the ground that certain documents were not in possession of the petitioner at the time of filing written statement and at the time of adducing evidence.
5. The Trial Court vide impugned order dated 12.12.2018 has rejected the aforesaid application on the ground that satisfactory reasons are not assigned in the affidavit for not producing the documents at an initial stage and that why the application has been filed belatedly. It was further held that the suit is pending for more that 10 years and therefore at the state of final arguments, such an application cannot be entertained.
6. Learned counsel for the petitioner submitted that the petitioner had never taken the defence that the documents which he wanted to produce were neither in his possession at the time of filing the written statement nor at the time of adducing evidence. But since he possessed the same recently, the petitioner was constrained to produce at this stage. Therefore the findings recorded by the Trial Court is perverse and is factually incorrect.
7. I have considered the submissions made by learned counsel for the parties and have perused the record. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
8. In the back drop of aforesaid well settled legal position, it is evident that exercise of jurisdictionary powers is discretionary in nature. From a perusal of paragraph 2 of the affidavit, it is evident that the petitioner has only stated that the aforesaid documents were not in his possession at the time of filing of the written statement or at the time of adducing evidence. However, it is evident the petitioner has not stated at what point of time and as to on which date that the document came to his possession. The documents have been executed on 25.07.2016, 06.06.2006 and 31.08.2006. The suit is pending for past more than 10 years and is fixed for final arguments. Therefore, in the fact circumstances of the case, I do not deem proper to exercise jurisdiction in the matter as the same would tantamount to support dilatory tactics taken by the party.
In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
Accordingly, the writ petitions fail and are dismissed.
Sd/- JUDGE rs