IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION Nos.15837 OF 2019 AND 16185 OF 2019 (GM-CPC) BETWEEN :
SRI T DHANRAJ AGED ABOUT 52 YEARS S/O SRI THYAGARAJ R/AT FLAT NO.112 SHESHABANU RESIDENCY 4TH MAIN ROAD, 6TH CROSS N.S.PALYA, B.T.M. 2ND STAGE 2ND PHASE, BANNERGHATTA ROAD BANGALORE-560 076 ..PETITIONER (BY MS.SAMPRUTHI R., ADV.) AND:
SRI RAJENDRA PRASAD AGED ABOUT 61 YEARS S/O LATE K.V.NARASIMHASETTY R/AT NO.39, 3RD CROSS GURURAJA LAYOUT PADMANABHANAGAR BANGALORE-560 070 .. RESPONDENT THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER UNDER ANNEXURE-A DATED 25.03.2019 PASSED IN O.S.NO.4077/2014 BY THE XXV ADDL. CITY CIVIL & SESSIONS JUDGE AT BANGALORE CITY (CCH-23) ALLOWING THE INTERLOCUTORY APPLICATION FILED BY THE RESPONDENT AND TAKEN ON RECORD AS I.A.NO.10 AND 11 UNDER ORDER XVIII RULE 17 OF CPC R/W SECTION 151 OF THE CPC TO RECALL THE ORDER DATED:20.11.2018 AND UNDER SECTION 151 OF THE CPC TO REOPEN THE DEFENDANTS SIDE EVIDENCE AND PERMIT HIM TO LEAD EVIDENCE AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed these writ petitions against the order dated 25.03.2019 passed on I.A.Nos.10 and 11 allowing the applications filed by the defendant under Order 18 Rule 17 read with Section 151 CPC with costs of Rs.1500/-.
2. Petitioner who is the plaintiff before the trial Court filed suit for declaration, consequential relief of possession and mesne profits. The defendant filed written statement denying the plaint averments and sought for dismissal of the suit. The trial Court, on 20.11.2018 taking the evidence of the respondent as nil, posted the matter for arguments. The plaintiff argued the matter on 03.12.2018 and matter was posted for respondent’s arguments. At that stage, defendant filed two applications i.e., I.A.Nos.10 and 11 under Order 18 Rule 17 read with Section 151 CPC to recall the order dated 20.11.2018 and to reopen the case for the defendant’s evidence and permit them to lead evidence respectively. The said applications were opposed. The trial Court considering applications and objections by the impugned order dated 25.03.2019 allowed both the applications with costs of Rs.1500/-. Hence, the present writ petitions are filed.
3. I have heard the learned counsel for the petitioner.
4. Ms.Sampruthi R. Learned counsel for the plaintiff vehemently contended that the impugned order passed by the trial Court allowing the applications filed by defendant in I.A.Nos.10 and 11 to recall and reopen for the evidence of the defendant is erroneous and contrary to the material on record and liable to be quashed. She would further contend that the suit was filed in the year 2014, the defendant inspite of granting sufficient opportunity, has dragged the matter and the present applications are filed highly belated, the trial Court ought to have rejected the said applications instead of encouraging the defendant in dragging the matter. She further contended that sufficient opportunity was granted to the defendant but it is not availed, therefore, now he is not entitled for another opportunity by filing applications at the fag end of the matter. Therefore, she sought for allowing the writ petitions.
5. Having heard the learned counsel for the petitioner, it is not in dispute that the present petitioner filed a suit for declaration and consequential relief of possession and mesne profits. Defendant filed written statement denied plaint averments and sought for dismissal of the suit. When the matter was posted for arguments of the defendant, at that stage, two applications in I.A.Nos.10 and 11 came to be filed. Though an opportunity was given to the defendant, they have not availed the opportunity. Trial Court considering the material on record, arrived at a finding that no doubt there is lapse on the part of the defendant in conducting the case with due diligence. However, considering the reasons stated by him and also to dispose of the matter judiciously it would be just and appropriate to allow the applications in the interest of justice and equity. However, by taking note of the lapses on the part of the defendant is not conducting the case with due care and caution he has to be penalized. Accordingly, the applications came to be allowed with costs of Rs.1500/-.
6. Ms.Sampruti R., learned counsel for the petitioner submits that now the matter is posted for defendant’s evidence on 24.04.2019. The defendant shall proceed with the matter without seeking further adjournment. The impugned order passed by the trial Court is just and proper. In order to do justice, between the parties as the rights of the parties in respect of immovable property are involved, the trial Court rightly allowed the applications. Same is in accordance with law. However, taking into consideration that suit is of the year 2014, the trial Court is directed to dispose of the suit expeditiously subject to co-operation of the parties to the lis in accordance with law.
Sd/- JUDGE brn