IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF MARCH 2017 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.8614/2013 (GM-CPC) BETWEEN:
SRI SRIPAL MEHTA S/O LATE SRI MANGILAL MEHTA AGED ABOUT 50 YEARS R/AT NO.15 & 15/1, 3RD FLOOR BVK IYENGAR ROAD,BANGALORE – 560 053 ... PETITIONER (BY SRI V.RAMESHA BABU, ADVOCATE) AND:
SRI A.R.MEHTA AGED ABOUT 61 YEARS NO.15 & 15/1, 3RD FLOOR PORTION OF 1ST & 2ND FLOOR BVK IYENGAR ROAD,BANGALORE – 560 053 ... RESPONDENT (BY SRI NANDA KISHORE J, ADVOCATE OF M/S.PURNA LAW ASSOCIATES [ABSENT]) WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.12.2012 PASSED BY THE 2ND ADDL. SMALL CAUSES JUDGE & XXVIII ACMM (SCCH-13), BANGALORE IN S.C.NO.2266/2011 VIDE ANNEXURE-F.
WP COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition is by the plaintiff and is directed against an interlocutory order dated 10.12.2012 passed by the trial court in the suit in O.S.No.2266/2011, whereby the trial court has rejected his application filed under Order 16 Rule 1 of CPC to issue witness summons to the officer of BSNL for production of certain documents stated in the application.
2. Heard learned counsel for the petitioner and perused the record. Learned counsel for the respondent is absent.
3. In the affidavit filed in support of the application, the petitioner/plaintiff has stated as follows:
“2. The defendant is residing at Thyagarajanagar. The Defendant has made an application to the BSNL for getting telephone connection to his residence and he has made an application in this regard and also produced the document proof of his residential address. These documents are very material to substantiate my contention since the witness who is a party to the said document is not accepting the same.”
4. The trial court has rejected the application with the following reasoning:
“8. ……………………………………………………………………….
…………………… So the documents which are already on record produced by both plaintiff and defendant are suffice to hold that the schedule premises comprises of shop and residential premises and hence the evidence of the General Manager, BSNL is not essential to adjudicate the facts in issue. No valid grounds are urged by the plaintiff to issue witness summons. Since the evidence of witness to be summoned is not relevant to decide the ejectment suit I hold that the plaintiff is not entitled for the relief sought in the application.
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5. It is stated by the learned counsel for the petitioner that one of the questions to be examined by the trial court is as to whether the suit premises is residential or non-residential. To determine the said aspect, the learned counsel submits, the documents sought for are relevant.
6. As could be seen from the affidavit filed in support of the application, the documents sought for may be relevant to examine the question as to whether the suit premises is residential or non-residential. Hence, the trial Court ought to have allowed the application. Accordingly, the impugned order is set aside. The application filed by the petitioner/plaintiff under Order 16 Rule 1 of CPC before the trial court is allowed. The trial court is directed to issue witness summons to the officer of BSNL for production of the documents referred to therein. The writ petition is disposed of accordingly.
Petition disposed of.
hkh.
Sd/- JUDGE