IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.43828-43829/2016 (GM-CPC) Between:
1. Sri K.M. Prasad @ K.M. Renuka Prasad, Son of late K.G. Muddaiah, Aged about 60 years, Occupation: Business, Residing at : No.597, Muddanna Garden, K.G.M. Weaving Factory, Kengeri, Bangalore – 560 060.
2. Smt. Lakshmamma, Wife of Late K.G. Ananda Kumar, Aged about 64 years, Occupation: House Wife, Residing at : No.597, Muddanna Garden, K.G.M. Weaving Factory, Kengeri, Bangalore – 560 060.
3. Smt. A. Sudha, Daughter of Late K.G. Ananda Kumar, Aged about 43 years, Occupation: House Wife, Residing at : No.597, Muddanna Garden, K.G.M. Weaving Factory, Kengeri, Bangalore – 560 060.
4. Smt. K.A. Poornima, Daughter of Late K.G. Ananda Kumar, Aged about 39 years, Occupation: House Wife, Residing at : No.597, Muddanna Garden, K.G.M. Weaving Factory, Kengeri, Bangalore – 560 060.
5. Sri K.A. Raghavendra, Son of Late K.G. Ananda Kumar, Aged about 43 years, Occupation: Business, Residing at : No.597, Muddanna Garden, K.G.M. Weaving Factory, Kengeri, Bangalore – 560 060. … Petitioners (By Sri N.K. Kantharaju, Advocate) And:
1. Sri M. Devaraj, Son of Late Muniswamy, Aged about 55 years, Occupation: Business, Residing at: No.3976, 3rd Main Road, 19th Cross, Banashankari 2nd Stage, Bangalore – 560 070.
2. Smt. K.M. Vijaya, Wife of C. Mara Hanumaiah, Aged about 68 years, Occupation: House Wife, Residing at No.93/24-A, 36th “A” Cross, 26th Main, 9th Block, Jayanagar, Bangalore – 560 069.
3. Smt. K.M. Indira, Wife of B. Kempegowda, Aged about 76 years, Occupation: House Wife, Residing at No.13, 19th “A” Main, 36th Cross, 5th Block, Jayanagar, Bangalore – 560 041.
4. Smt. Meena, Wife of Anjani, Aged about 38 years, Occupation: House Wife, Residing at No.911, Sukkur Circle, Kengeri, Mysore Road, Bangalore – 560 060.
5. Sri G.N. Srinivasa, Son of Nanjundaiah, Since, deceased by his Lrs:
5(a) Smt. Pavithra Srinivas, Wife of Late G.N. Srinivas, Aged about 50 years, Residing at #152, 8th Cross, Bilekalli, BTM II Stage, Dollar’s Layout, Bengaluru – 560 076.
5(b) Mr. Varun Gowda S., Son of Late G.N. Srinivas, Aged about 27 years, Residing at #152, 8th Cross, Bilekalli, BTM II Stage, Dollar’s Layout, Bengaluru – 560 076.
5(c) Miss. Sonali, Daughter of Late G.N. Srinivas, Aged about 29 years, Residing at #152, 8th Cross, Bilekalli, BTM II Stage, Dollar’s Layout, Bengaluru – 560 076. … Respondents [By Sri T.N. Raghupathy, Advocate for R1;
Sri K.R. Sreenivasa Patavardhan, Advocate for R4; Sri K.S. Uday, Advocate for R5(b & c);
R2 – Served;
v/o dated 15.03.2018, service of notice to R3 is dispensed with;
v/o dated 24.07.2019, service of notice to R5(a) is held sufficient;
v/o dated 02.07.2019, hand summons are served on Adv. for R5(a to c)] These Writ Petitions are filed under Article 227 of the Constitution of India, praying to call for the entire records in O.S. No.6345/2005 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru and quash the order dated 20.07.2016 passed by the Court of XVII Additional City Civil and Sessions Judge, Bengaluru in IA Nos.30 & 31 filed by the R-1 under order XVIII Rule 17 read with Section 151 CPC to recall the order dated 11.07.2014 and to permit the R-1/plaintiff to lead further evidence and IA No.31 filed under order VII Rule 14(3) CPC seeking permission to produce the documents as per the list in O.S. No.6345/2005 produced as Annexure-A and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioners who are defendant Nos.1 to 5 have challenged the order at Annexure-A dated 20.07.2016 passed by the trial Court on I.A.No.30 filed by the plaintiff, the first respondent herein seeking to recall the order dated 11.07.2014 and whereby permission was sought to lead further evidence and also aggrieved by the order passed on I.A.No.31 dismissing the application filed seeking to produce the documents as per the list annexed.
2. The case of the plaintiff is that the application for amendment filed by the plaintiff at an earlier point of time came to be disposed of as per the order dated 16.02.2013. It is contended that the said application was partly allowed, while rejecting certain amendments, the court below allowed the application as regards amendment to para-12(d) and to the prayer column.
3. It is the contention of petitioners-defendant Nos.1 to 5 that the documents now sought to be produced were all produced alongwith I.A.No.15 filed seeking amendment. It is further contended that the application has been dismissed observing laches on the part of the plaintiff and the same documents produced alongwith the amendment application ought not to be permitted to be produced at a later point of time. It is further contended that the plaintiff is seeking to cover his lapse by producing the documents at a later point of time.
4. Learned counsel appearing for the respondent No.4 has also opposed the allowing of the application by the trial Court. He contends that the order of the trial Court is liable to be interfered with in light of laches and delay on the part of the plaintiff in producing the documents.
5. Learned counsel appearing for the respondent No.1 (plaintiff before the court below) however contends that there is a distinction between the consideration regarding dismissal of application for amendment as well as consideration of the application filed seeking to produce the documents. It is contended that even if the amendment application has been rejected in part, nothing prevents the plaintiff from producing the documents, if on the existing pleading itself the documents may be made use of to bolster the case of the plaintiff.
6. Heard learned counsel appearing for the parties. The question for determination is as to.-
“Whether the order of the trial Court passed on I.A.Nos.30 and 31 is liable to be interfered with?”
7. The trial Court has considered in detail the application and while referring to the judgments of the Apex Court has observed that the documents sought to be produced would have a bearing on the merits of the case and also the contention of the plaintiff as made out in the plaint. It is noted that the agreement of sale relied upon by the plaintiff has been disputed and under such circumstances, the production of documents sought by the plaintiff is to be permitted so as to enable the Court to decide the matter on merits. The trial Court while noticing that there has been some delay on the part of the plaintiff, has imposed costs of Rs.1,000/- and allowed the application in part.
8. It is to be noted that the consideration for permitting the production of documents is different from consideration as regards to the evidentiary value of the documents. No doubt, the application for amendment sought by the plaintiff has been allowed only in part and also it is noticed that the documents filed alongwith the amendment were now sought to be produced, however, a mere dismissal of the amendment application would not bar the trial Court from considering as to whether the application for production of documents ought to be allowed.
9. The consideration of the trial Court while dismissing the amendment application in part no doubt has attained finality, however, in spite of lack of pleadings sought to be inserted by way of amendment if the documents are permitted to be produced which would bolster the case of the plaintiff, the same could be allowed. Though it is contended by learned counsel for the respondent – purchaser that no amount of evidence would substitute absence of pleadings, however, mere permitting of documents to be produced would not in any way be contrary to the above said principle. No doubt, the affidavit filed in support of application has been filed in a slipshod manner, but that by itself ought not to shut out documents, which may have a bearing on the merits of the case.
10. Accordingly, being conscious of the scope of jurisdiction to be exercised in the present proceedings, no case is made out for interference with the order of the trial Court.
11. It is also to be noted that subsequent to the impugned order being passed, the proceedings have progressed and the documents were permitted to be produced and marked and were made subject to the orders to be passed in the present writ petitions. However, noticing that there are laches on the part of the plaintiff in approaching the trial Court by filing the application for production of documents, the respondent No.1 (plaintiff) is to pay further costs of Rs.4,000/- (rupees four thousand only) to the petitioners.
12. Learned counsel for the petitioner makes a request for granting permission to cross-examine the plaintiff on the documents that were permitted to be produced as per the impugned order.
13. This request is to be made before the trial Court. It is always open to the trial Court to consider the said request, more so, in light of pendency of the present writ petitions and as the documents were marked subject to outcome of present writ petitions.
Accordingly, the petitions are rejected, subject to the above observations.
VGR Sd/- JUDGE