IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.35297-298 OF 2018 (GM-CPC) BETWEEN:
SRI. DILIP J. MANSUKHANI S/O JAGATRIA S. MANSUKHANI AGED ABOUT 65 YEARS R/AT NO.4-23, NISHIOKA-4-JO/CHOME TOYIRA, SAPPARO HOKKAIDO, JAPAN.
REP. BY HIS POWER OF ATTORNEY SRI JAVARI MALANI S/O HASSARAM MALANI AGED ABOUT 51 YEARS R/AT NO.39, 34D LANE 3RD CROSS, LALBAGH ROAD BENGALURU-27.
(By Mr. VIVEK SUBBA REDDY, ADV., & Mr. SUBBA REDDY K.N. ADV.,) AND:
1. SRI. THAYAPPA S/O LATE AKKALAPPA AGED MAJOR.
2. SRI T. SHIVANNA S/O THAYAPPA AGED MAJOR.
3. SRI T. SHANKAR S/O THAYAPPA AGED MAJOR.
… PETITIONER 4. MUNIYAPPA S/O LATE AKKALAPPA AGED MAJOR.
5. SRI NARAYANA S/O MUNIYAPPA AGED MAJOR.
6. VENKATESH S/O MUNIYAPPA MAJOR.
7. MANJUNATHA S/O MUNIYAPPA AGED MAJOR.
RESPONDENTS 1 TO 7 ARE ALL RESIDENTS OF MARIYAPPANAPALYA DASARAHALLI DHAKLE K.R. PURAM HOBLI BENGALURU SOUTH.
8. V.M. VENKATASUBBIAHA S/O RAMAIAH, MAJOR R/AT NO.153, 2ND BLOCK 5TH MAIN R T NAGAR BENGALURU-32.
9. SMT. V.R. RAMALAKSHMI W/O V.M. VENKATASUBBAIAHA R/AT NO.153, 2ND BLOCK 5TH MAIN, R.T. NAGAR BENGALURU-32.
10. RAMAIAH S/O LATE APPAL RAJU AGED ABOUT 82 YEARS MORE SPECIFICALLY THE FATHER OF DEFENDANT NO.8, R/AT NO.670 II CROSS 7TH MAIN HMT LAYOUT R T NAGAR, BENGALURU-32.
11. SHILPA KOTESHWAR W/O K R SHIVANANDA AGED 42 YEARS R/AT NO.79/8, 1ST CROSS II BLOCK JAYANAGAR BENGALURU-11.
12. SMT. PADMAJA KUMARI W/O K. RAJA GOPAL AGED ABOUT 60 YEARS R/AT NO.79/8, 1ST CROSS II BLOCK JAYANAGAR BENGALURU-11.
13. SRI K R SHIVANANDA S/O SRI K RAJAGOPALA MAJOR R/AT NO.79/8 1ST CROSS II BLOCK JAYANAGAR BENGALURU-11.
… RESPONDENTS (By Mr. PADMANABHA V. MAHALE, SR. COUNSEL & Mr. RAMESH P KULKARNI, ADV., FOR R11-R13 V/O DATED 05-12-2018 NOTICE TO R1 TO R10 D/W) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 3.8.2018 PASSED BY THE III ADDL. CITY CIVIL JUDGE, BENGALURU CITY IN O.S.NO. 1850/2007 VIDE ANNEX-A AND CONSEQUENTLY ALLOW THE I.A.NOS.22 AND 23 FILED BY THE PLAINTIFF / PETITIONER HEREIN & ETC.
THESE WRIT PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Subba Reddy, learned counsel for the petitioner.
Mr. Ramesh P.Kulkarni, learned counsel for the respondent.
2. The writ petitions are admitted for hearing.
With consent of the parties, the same are heard finally.
3. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 03.08.2018 assed by the Trial Court by which application preferred by the petitioner under Section 151 of Code of Civil Procedure, 1908 as well as application under Order XVII Rule 18 (hereinafter referred to as ‘the Code’ for short) has been rejected.
4. Facts giving rise to the filing of the petitions are that on 01.03.2007, the plaintiff/petitioner filed the suit seeking a relief of declaration and mandatory injunction. After the evidence in the suit was adduced by the parties and the case was fixed for final arguments, the petitioner filed the applications under Section 151 of the Code as well as application under Order XVIII Rule 17 of the Code. The aforesaid applications have been rejected by the Trial Court by the impugned order dated 03.08.2018. In the aforesaid factual background, this petition has been filed.
5. Learned Senior counsel for the petitioner while inviting the attention of this Court to para 26 & 27 of the written statement filed by the defendant Nos.11 to 13 submitted that there is a dispute with regard to identity of the suit property and therefore, it is necessary to recall defendant No.1 for re-examination. Learned Senior Counsel for the petitioner has also invited the attention of this Court to the affidavit filed along with the application under Section 151 of the code and submitted that the reasons have been assigned in the aforesaid affidavit seeking re-examination Defendant Witness No.1. It is also submitted that the applications were filed bonafide and the re-examination of Defendant Witness No.1 will assist the court to clarify the issues and will assist in rendering justice. In support of aforesaid submission, reliance has been placed on a decision of the Supreme Court in the case of ‘K.K.VELU SAMY VS. N.PALANI SAMY’, 2011 11 SCC 275. On the other hand, learned Senior counsel for the respondents has opposed the prayer and has submitted that the petitioner has repeatedly filed I.A. and suit is more than 12 years old and therefore, the Trial Court has rightly rejected the applications preferred by the petitioner which does not call for any interference by this Court in exercise of its powers under Article 227 of the Constitution of India. In support of the aforesaid submission, reference has been made to a decision of Supreme Court in the case of ‘Gayathri vs. M.Girish’, 2016 14 SCC 142.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the aforesaid applications were made at the stage when the suit was fixed for final arguments. In the affidavit, which is filed in support of the application under Section 151 of the Code, the petitioner has stated that defendant No.1 was cross- examined on 09.03.2018 and at the time of preparation of the arguments on merits, the counsel informed him that there is a necessity to recall Defendant Witness No.1 for the purposes of cross-examination in respect of issues pertaining to overlapping factor of suit properties with the defendant’s property in question. Accordingly, the application was filed seeking to reopen the case. It is not in dispute that the defendant No.1 has already been cross examined on 09.03.2018. the Supreme Court in the case of K.K.Velu Samy (supra) has held that Court can exercise the discretion under Section 151 and under Order XVIII Rule 17 of the Code for valid and cogent reasons. The practice of filing the interlocutory application to stall the progress of suit has been deprecated by the Supreme Court in the case of Gayathri (supra). The relevant extract of para 9 reads as under:
‘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.’ 7. In the backdrop of aforesaid legal position, facts of the case in hand may be seen. In the instant case the suit was instituted in the year 2007. When the proceeding in the suit were fixed for arguments, the petitioner filed applications under Section 151 and under Order XVIII Rule 17 of the Code seeking reopening of the case and for recalling Defendant Witness No.1. The reason assigned in the applications is far from satisfactory. If such an explanation is accepted, the proceeding in the suit can never be concluded. The Trial Court therefore, has rightly held that no reasonable ground is made out to entertain the Interlocutory Applications . The order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference in excise of its powers under Article 227 of Constitution of India. 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. 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. 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.
In view of preceding analysis no case is for interference in this writ petitions are made out. The same fails and are hereby dismissed.
Sd/- JUDGE SS