IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NOS.41084-41086 OF 2016 (GM-CPC) BETWEEN:
1. SRI.KRISHNAPPA, S/O LATE MUTHAPPA, AGED ABOUT 78 YEARS, 2. SRI.NARAYAN @ MUNIRAJU, S/O KRISHNAPPA, AGED ABOUT 43 YEARS, 3. SRI.KISHORE @ AYYAPPA, S/O KRISHNAPPA, AGED ABOUT 40 YEARS, 4. SRI.ANAND, S/O KRISHNAPPA, AGED ABOUT 38 YEARS, ALL ARE RESIDING AT NO.198/D, 10TH CROSS, VINOBHANAGAR, K.G.HALLI, ARABIC COLLEGE POST, BANGALORE – 560 045. ... PETITIONERS (BY SRI.C.VINAY SWAMY, ADVOCATE) AND:
SRI.RIZWAN PASHA, S/O ABDUL SAMAD, AGED ABOUT 38 YEARS, RESIDING AT NO.398, 2ND MAIN ROAD, 3RD STAGE, PILLANNA GARDENS, BANGALORE – 560 045. ... RESPONDENT (COPY SERVED ON ADVOCATE FOR RESPONDENT APPEARING IN TRIAL COURT (NAME NOT MENTIONED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD:18.6.2016 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSION JDUGE AT BANGALORE, MAYO HALL, (CCH-21) IN O.S.NO.25677/2008 (IN IA'S NO.8 TO 10) VIDE ANNEXURE-K AND DISMISS THE APPLICATION AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the defendants in the injunctive suit filed by the respondent in O.S.No.25677/2008 are invoking the writ jurisdiction of this Court for assailing the order dated 18.06.2016, a copy whereof is at Annexure-K whereby, the learned IVth Additional City Civil Judge, Bengaluru, has favoured respondent’s three applications in IA Nos. 8, 9 & 10 and thereby having reopened the case has permitted the said respondent to examine the Assistant Executive Engineer of BESCOM as his witness. The respondent after service of notice has entered appearance through his counsel and resist the writ petitions.
2. Learned counsel for the petitioners vehemently argues that respondent’s bare injunction suit is of the year 2008; the recording of evidence having been closed on 11.03.2010, the matter was posted for arguments; thereafter the respondent has taken six adjournments with one or the other excuse only with intent to drag on the proceedings for harassing these petitioners; thereafter, he has filed the subject applications on 01.10.2015 i.e., more than five and half years after the matter was posted for arguments; the explanation offered for this delay is not plausible; the purpose for which the respondent wants to examine the Assistant Executive Engineer of BESCOM even otherwise also will not be served; therefore the impugned order being infected with legal & factual errors, is liable to be quashed. So arguing, he seeks allowing of the writ petitions.
3. Learned counsel for the respondent per contra opposes the writ petitions contending that his explanation offered for the delay in moving the subject applications having been examined by the Court below came to be accepted; examining of the Assistant Executive Engineer of BESCOM is very essential to prove the case of the plaintiff; no prejudice will be caused to the other side by the impugned order more specially when a heavy cost of Rs.1,500/- is levied by the Court below. So contending, he seeks dismissal of the writ petitions.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter for the following reasons:
i) suit of the respondent is for an injunctive relief; it is of the year 2008 and thus, it has been pending for more than a decade; recording of plaintiff’s evidence was over on 11.03.2010; the matter was posted for arguments; the respondent having sought six adjournments thereafter, has filed the subject applications only on 01.10.2015 i.e., more than five years after his evidence was closed; thus, there has been an inordinate delay and latches on the part of the respondent which the Court below failed to appreciate;
ii) as already said above, the suit is for injunctive decree; the respondent intends to examine the Assistant Executive Engineer of BESCOM for authenticating the electricity bills and other installation records, at this point of time; how the said Engineer will be of any assistance for such authentication is not forthcoming; why petitioner could not examine the said Engineer or any other official from the BESCOM before his evidence was closed or within a reasonable time thereafter; and iii) the record of the proceedings in the suit shows that umpteen number of adjournments had been availed by the plaintiff with one or the other pretext/excuse; any reasonable mind trained in law with the said record can assume that the suit proceedings are being dragged on by the respondent for harassing the petitioners herein; such an unscrupulous litigant could not have been shown favour by the Court below; levy of cost of a paltry sum of Rs.1,500/- is not a solace to the petitioners who have been dragged in the suit for more than a decade; thus, justice of the case warrants interference of this Court in favour of the petitioners.
In the above circumstances, these writ petitions succeed; impugned order is quashed; the subject applications filed by the respondent stand dismissed.
The observations hereinabove made shall not influence the trial & decision making in the suit. The trial judge is requested to dispose off the suit within an outer limit of one year.
No costs.
Sd/- JUDGE Cbc/Bsv