IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.44182-44183 OF 2014 (GM - CPC) Between:
Smt. Subbalakshmi, W/o Sri.B.N.Prakash Rao, Aged about 56 years, Residing at No.15, Skanda Nilaya, Dathareya Badavane, Kempegowdanagar, Bangalore – 560 019. ... Petitioner (By Sri. Gopi, for Sri.C.T.Parameshwarappa, Advocates) And:
1. Smt. E. Pramilla Bai, W/o Sri.N.Venkob Rao, Aged about 56 years, R/at No.71, 3rd Cross, III block, T.R.Nagar, Bangalore – 560 028.
2. Smt. E. Lalitha Bai, W/o Sri. C.K.Premnath Rao, Aged about 53 years, R/at No.12/1, ‘C’ Cross, Behind Minerva Mill, Gopalapuram, Magadi Road, Bangalore – 560 023.
3. Sri.N.Eshwar Rao, S/o Sri. Narayana Rao, Aged about 89 years, Since deceased, vide order dated 12.2.2018, respondent Nos.1, 2, 4 and 5 are treated as legal representatives of deceased respondent No.3.
4. Sri.Nagendra Rao S/o Sri.N.Eashwar Rao Aged about 64 years (a) Smt.K.H.Lalitha Bai W/o Late Nagendra Rao Aged about 60 years (b) Sri Deleep, S/o Late Nagendra Rao Aged about 29 years (c) Tanuja D/o Late Nagendra Rao Aged about 27 years, 4(a) to (c) are residing at New No.750, Old No.677, 2nd Main Road, 8th Cross, Bangarappa Badavane, Rajarajeshwari Nagar, Bangalore – 98.
5. Sri.Jagannath Rao, S/o Sri.N.Eashwar Rao, Aged about 56 years, All are R/a New No.750, Old No.677, 2nd Main Road, 8th Cross, Bangarappa Badavane, Rajarajeshwarinagar, Bangalore – 560 098. ... Respondents (By Sri.D.L. Suresh, Advocate for R1 & R2; Vide order dated 29.10.2014, notice to R3 to R5 is dispensed with;
R4(a to c) are served, but unrepresented) These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash Annexure – G the order dated 22.08.2014 on I.A.Nos.20 & 21 filed under Section 151 and under order XVIII Rule 17 of CPC passed by the V Additional City Civil Judge at Bangalore in O.S.799 of 2008 and allow the I.A.Nos.20 & 21 filed under Section 151 and under Order XVIII Rule 17 of the CPC by allowing this Writ Petition and etc., These Writ Petitions coming on for further orders this day, the Court made the following:-
ORDER The 4th defendant-purchaser of the suit schedule property has come up with this writ petition impugning the order dated 22.8.2014 on I.A Nos.20 and 21 which were filed under section 151 of CPC and also under Order XVIII Rule 17 of CPC in O.S No.799/2008 pending on the file of V Additional City Civil Judge, Bengaluru.
2. Admittedly, the suit in O.S. No.799/2008 is filed for the relief of partition and separate possession in the suit schedule property bearing Municipal No.102 (Old No.32A), 2nd Cross Road, Gowdananpalya, Padmanabhanagar, which is a vacant site measuring 52 feet x 32 feet. The suit is filed by respondent Nos.1 and 2 against their brothers who are respondent Nos.3 to 5 in this proceeding. Admittedly, the suit schedule property was the property of one Laxmi Bai, the mother of the plaintiffs.
3. The material on record would indicate that even prior to the suit for partition was filed, defendant Nos.1 to 3 have collectively sold the suit schedule property in favour of the petitioner herein, who is the 4th defendant before the Court below.
4. In the Court below, issues were framed and the parties were called upon to adduce evidence. It is seen that plaintiff No.2 in the Court below, who is respondent No.2 herein is the wife of C.K.Premnath Rao and she has adduced evidence as P.W.1. As could be seen from the order sheet, which the learned counsel for the petitioner has produced before this Court, an affidavit was filed on 29.3.2011, on which date P.W.1 i.e., plaintiff No.2 was examined. Further, the documents at Exs.P.1 to P.5 were marked through her. Thereafter, further chief examination was deferred at request to 6.6.2011, on which date, the evidence of P.W.1 was concluded. It is also necessary to place on record that defendant Nos.1 to 3 against whom the suit for partition was filed have not participated in the suit nor they filed written statement though they were represented by the learned counsel. The cross examination of defendant Nos.1 to 3 was taken as nil on 6.6.2011. However, cross examination of P.W.1 on behalf of defendant No.4 is concerned was not conducted and hence, the case was adjourned to 5.7.2011, on which date defendant No.4 was not before the Court below and cross examination P.W.1 was taken as nil. Hence, the matter was posted for defendant’s evidence. Thereafter, till 27.7.2011, no steps were taken by defendant No.4 to seek cross examination of P.W.1. On 27.7.2011, the applications I.A. Nos.5 and 6 were filed which were to open the case and for recalling of P.W.1. Both the applications were allowed on payment of cost of Rs.1,000/- and matter was posted to 29.7.2011 for cross examination of P.W.1. Though the case was posted on 29.7.2011, cross examination was not done. In stead, an application I.A. No.7 was filed by defendant No.4 for amendment under Order VI Rule 17 of CPC. After hearing, the said application was posted for orders on 28.9.2011, on which date the said application came to be allowed on payment of cost of Rs.500/-. The amendment was also carried out on 12.10.2011. Thereafter, on 11.01.2012, P.W.1 was recalled for cross examination and the matter was adjourned to 7.2.2012, on which date though P.W.1 was present, he was not cross examined by defendant No.4.
However, learned counsel for defendant No.4 by filing an application, sought time for cross examination, which was rejected. In the meanwhile, one more application filed seeking rejection of plaint was also dismissed. Further, by doing so, an application which was subsequently filed in I.A No.11 seeking recalling of P.W.1 was allowed on 17.4.2012 on payment of cost of Rs.500/-.
5. In the meanwhile, there was deviation in the proceedings. Enquiry was sought on issue No.3 by defendant No.4 and the said issue was decided on 10.09.2012. Thereafter, the matter was posted for cross examination of P.W.1 on 10.10.2012, on which date, the cross examination was not done. Adjournment was sought on 23.11.2012, on which cross examination of P.W.1 was taken as nil and the case was posted on 16.1.2013, on which date the case was reopened and defendant No.4 sought time for cross examination of P.W.1 which was allowed by imposing the cost. Though, the cost was paid, the cross examination of P.W.1 was not done. This was being repeated on 5.2.2013, 29.9.2013, 3.12.2013, 17.1.2014, 5.2.2014, 30.4.2014, 22.7.2014, 12.8.2014. On all these occasions, the applications were filed repeatedly and the said application were allowed and P.W.1 was recalled, but cross examination was not done by defendant No.4.
6. It is a clear indication that defendant No.4, who is the subsequent purchaser of the property in question, is trying to stall the proceedings and treating the proceedings before the court below as joke, which should not be entertained. It is further clear that time sought for by the 4th defendant is to protract the proceedings to abuse the process and deliberately waste valuable time of the Court continuously for three years by repeatedly filing applications ten times. Therefore, this Court is of the considered opinion that the present order impugned cannot be recalled. However, as a last chance, it would be proper to allow the present writ petitions by imposing cost of Rs.50,000/- on the petitioner for having abused the process of Court.
7. Accordingly, the writ petition is allowed on the cost of Rs.50,000/-. The petitioner is entitled to cross examine P.W.1 on the next date of hearing on 8.3.2019 without seeking any adjournment and that too after depositing cost of Rs.50,000/- in the court below for deliberately wasting the valuable time of the Court. From out of the Cost deposited by the 4th defendant/petitioner herein, Rs.10,000/- shall be paid to PW.1 and balance Rs.40,000/- to be appropriated to the registry of the Court below.
8. The cross examination of P.W.1 shall be subject to deposit of cost of Rs.50,000/- on or before 8.3.2019 and the cross examination shall be concluded on the same day or else, this order would not enure to the benefit of the petitioner.
9. It is made clear that the Court below shall hear the parties and dispose of the suit on merits within 60 days thereafter.
Sd/- JUDGE Cs* CT:SN