IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.2185/2019(GM-CPC) BETWEEN:
SRI N. NARASIMHALU S/O LATE NARASARAJU SINCE DIED BY HIS LRS 1a) SRI NARASARAJU, S/O LATE NARASIMHALU AGED ABOUT 46 YEARS, GPA HOLDER OF ALL OTHER PETITIONERS 1b) SRI NARAYANARAJU S/O LATE NARASIMHALU AGED ABOUT 52 YEARS, 1c) SMT. REKHA D/O LATE NARASIMHALU AGED ABOUT 52 YEARS, 1d) SMT. PADMA S/O LATE NARASIMHALU AGED ABOUT 38 YEARS, 1e) SMT. UMA D/O LATE NARASIMHALU AGED ABOUT 35 YEARS, ALL ARE RESIDING AT NO.1, KENCHAPPA BLOCK, OPP DASAPPA GARDEN, R.T.NAGAR, BANGALORE - 560 032.
... PETITIONERS (BY SRI GANGADHARAIAH A. N., ADVOCATE) AND:
1. SRI D. MUNIYAPPA, S/O LATE DASAPPA, MAJOR, SINCE DECEASED BY HIS WIFE 1a) SMT. RAJAMMA W/O LATE MUNIYAPPA, MAJOR, 2. SRI M. ANANDA, AGED ABOUT 43 YEARS, SINCE DEAD BY HIS LRS 2a) SMT. GEETHA W/O LATE ANANDA, AGED ABOUT 45 YEARS, 2b) RADHA D/O LATE ANANDA AGED ABOUT 40 YEARS, 2c) RAJESH, S/O LATE ANANDA AGED ABOUT 23 YEARS, 2d) RAMESH S/O LATE ANANDA AGED ABOUT 21 YEARS, 3. SRI M N NANJAPPA AGED ABOUT 43 YEARS, 4. SRI M NAGARAJU AGED ABOUT 35 YEARS, 5. SRI BABU AGED ABOUT 31 YEARS, 6. SRI MURTHY AGED ABOUT 30 YEARS, 7. SMT. MUNIRATHNAMMA AGED ABOUT 40 YEARS, ALL ARE RESIDING AT NO. 91, DASAPPA GARDEN, CHOLANAYAKANAHALLI HMT LAYOUT BANGALORE - 560 032.
8. SMT. ISHRATUNNISA W/O ABDUL HAFEEZ AGED ABOUT 32 YEARS, RESIDING AT NO. 1557 CHAMUNDI NAGAR, SEETHAPPA LAYOUT R.T.NAGAR POST BANGALORE - 560 032.
9. SMT. SAHERA BANU W/O ABDUL JALELE AGED ABOUT 28 YEARS, C/O ABDUL JALABB NO.90, 1ST CROSS MASJID ROAD, CHAMUNDI NAGAR R.T.NAGAR POST BANGALORE - 560 032 10. SRI ABDUL KHUDDUS S/O LATE ABDUL SUBHAN, SINCE DEAD BY HIS LRS 10a) SMT. KHURSHEED W/O LATE ABDUL KHUDDUS AGED ABOUT 53 YEARS, RESIDING AT NO.9 RAHMATH NAGAR BANGALORE - 560 032.
... RESPONDENTS (BY SRI NATARAJU B. HALEMANE, ADVOCATE FOR R-8 TO R-10(a); R1(a), R2(a) TO R2(d), R3TO R7 ARE SERVED BUT UNREPRESENTED) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED TRIAL JUDGE (CCH-44) BENGALURU IN O.S.NO.8075/2005 VIDE ORDER DATED 03.01.2019 ON APPLICATION UNDER ORDER 17 RULE 1 OF CPC VIDE ANNEXURE-C AND CONSEQUENTLY, PERMIT THE PETITIONERS TO CROSS-EXAMINE D.Ws.2 AND 3 BY ALLOWING I.A.NO.31.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs filed the present writ petition against the Order dated 03.01.2019 made in O.S.No.8075/2005 dismissing I.A.No.31 filed under Order XVII Rule 1 of Code of Civil Procedure, and consequently to permit the petitioners to cross examine DWs 2 and 3 by allowing I.A.No.31.
2. The petitioners herein filed suit for declaration and permanent injunction contending that they are the absolute owners in possession of the suit schedule property and that the defendants have no manner of right, title and interest. The defendants filed written statement, denied the plaint averments and sought for dismissal of the suit.
3. When the matter was posted for cross- examination of D.W.2 and 3, on 03.01.2019, on the application filed by the plaintiffs, the Trial Court allowed I.A.Nos.29 and 30 with cost of `500/- to be paid forthwith, subject to condition that, DWs 2 and 3 shall be cross-examined fully, forthwith, on that day, failing which order allowing I.A.Nos.29 and 30 will automatically stand cancelled. At 12.30 pm again case was called out. DWs 2 and 3 were present. Sri MSM, who filed vakalath for the plaintiffs filed I.A.No.31 under Order XVII Rule 1 of Code of Civil Procedure. The Trial Court, considering the application, dismissed the application mainly on the ground that inspite of granting sufficient time, plaintiffs have not proceeded. Therefore, cross-examination of DWs 2 and 3 was taken as nil. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri A.N.Gangadharaiah, learned counsel for the petitioners contended that the impugned order passed by the Trial Court dismissing the I.A.No.31 filed by plaintiffs under Order XVII Rule of Code of Civil Procedure is contrary to material on record. The Presiding Officer was on leave on 07.06.2018, and 07.07.2018. On 04.08.2018, DWs.2 and 3 were absent.
On 30.08.2018 the petitioners requested time and prayed for adjournment for the bonafide reasons as the counsel was held up before this Court. Subsequently the matter was adjourned to 03.10.2018 on payment of cost. The Trial Court refused to grant time and failed to appreciate that petitioners’ counsel was out of station and the time sought was for bonafide reason. Ultimately, cross examination of D.Ws. 2 and 3 was taken as nil. I.A.Nos. 29 and 30 were allowed subject to payment of cost. Since the counsel requested time, application came to be dismissed. Therefore, learned counsel submits that an opportunity should have been given to the parties to putforth their case, since the suit is for declaration and permanent injunction in respect of suit schedule property. Therefore, he sought to allow the writ petition.
6. Per contra, Sri Nataraju B. Halemane, learned counsel for the contesting defendants, respondent Nos.8 to 10(a), sought to justify the impugned order and contended that inspite of allowing the application with cost of `500/-, the plaintiffs have not shown diligence to proceed with the case. Therefore, the Trial Court is justified in passing the impugned order.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed suit for declaration and permanent injunction in respect of suit schedule property. The defendants filed the written statement and denied the plaint averments. It is also not in dispute that the counsel for plaintiffs filed I.A. No. 29 under Section 151 of Code of Civil Procedure and I.A. No.30 under Order XVIII Rule 17 of Code of Civil Procedure to recall and reopen the case and permit the plaintiffs to cross examine D.W.2 and 3 which came to be allowed on 03.01.2019 subject to payment of cost of `500/- and subject to condition that D.Ws.2 and 3 shall be cross examined fully forthwith, failing which the order allowing the applications stands automatically cancelled. Though the counsel for plaintiffs filed I.A.No.31 to recall the said order and sought permission to cross-examine DWs.2 and 3, the Trial Court dismissed the application on the ground that inspite of granting sufficient time, plaintiffs have not proceeded. The fact remains that the suit filed by plaintiffs for declaration and permanent injunction in respect of immovable property. The civil rights involved in respect of immovable property cannot be deprived on technicality.
8. Though the suit was filed in the year 2005, application came to be filed only on 03.10.2018. The learned Judge while allowing the application, ought to have given breathing time to cross-examine D.W.2 and 3. The Courts are meant to do substantial justice and not deprive the rights of the parties on technicality. This Court is aware of the dictum of the Hon’ble Supreme Court in the case of Gayathri vs. M.Girish reported in (2016)14 SCC 142 wherein it has been held that repeated adjournments should not be encouraged, that too in old matters.
9. However, the fact remains that when the rights of the parties in respect of immovable properties are involved, the Court should allow the application by imposing reasonable cost. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
10. Taking into consideration the fact that the rights of the parties in respect of immovable property is involved, one more opportunity has to be given as a last chance to the plaintiffs to cross-examine D.Ws.2 and 3 on the next date of hearing to be fixed by the Trial Court, subject to payment of cost and at any cost, plaintiffs shall not seek further adjournment. If plaintiffs fail to cross examine D.Ws.2 and 3 on the next date of hearing, then, they will have no legal right to file any further application to recall.
11. For the reasons stated above, writ petition is allowed. The impugned Order dated 03.01.2019 made in O.S.No.8075/2005 dismissing I.A.No.31 filed under Order XVII Rule 1 of Code of Civil Procedure, is hereby quashed. I.A.No.31 is allowed subject to condition that the plaintiffs shall not seek any further adjournment and shall proceed with cross examination of D.Ws. 2 and 3 on the next date of hearing to be fixed by the Trial Court, subject to payment of cost of `3000/- payable by the plaintiffs to the defendants.
12. Learned counsel for both the parties submit that the suit is posted to 15.04.2019. Since the matter is of the year 2005, plaintiffs are directed to file advancement application to prepone the case. On such application, Trial Court shall prepone the hearing of the suit and on that day, plaintiffs shall proceed with cross-examination of D.Ws.2 and 3 without fail.
Ordered accordingly.
Sd/- JUDGE kcm