IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.NOS.11326-11328 OF 2017 (GM-CPC) BETWEEN:
SMT.VIJAYA G.HOMBALE W/O.CHANDRAPRASAD AGED ABOUT 56 YEARS R/AT MARIKAMBA ROAD SAGAR TOWN SHIMOGA DISTRICT-577 401 ... PETITIONER (BY SRI R.GOPAL, ADVOCATE) AND:
SMT.SABEENAWAZ W/O.ALEX WAZ AGED ABOUT 54 YEARS R/AT “OBETO HOUSE”
WAZ FIELD, HIRGAN VILLAGE KARKAL TALUK UDUPI DISTRICT-574 104 …RESPONDENT (BY SRI VEERENDRA R. PATIL, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 02.03.2017 (ANNEXURE-A) PASSED BY THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE, SAGAR ON IA.NOS.7 TO 9 FILED BY THE DEFENDANT IN OS.NO.32/2014.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R The defendant has filed these writ petitions against the common order dated 02.03.2017 whereby the trial Court has dismissed the applications-IA.No.7 filed under Section 151 of CPC to reopen the case on plaintiff’s side and defendant’s side so as to cross examine PW.1, IA.No.8 filed under Order 18 Rule 17 of CPC to recall PW.1 for cross examination and IA.No.9 filed under Section 151 of CPC to postpone the pronouncement of judgment in OS.No.32/2014.
2. The respondent-plaintiff filed a suit for recovery of money of a sum of Rs.51,91,780/- (Rupees Fifty One Lakhs Ninety One Thousand Seven Hundred Eighty Only) as against the petitioner-defendant. The defendant has filed written statement denying the averments made in the plaint. The matter was posted on 18.01.2017 for settlement. On that day, the settlement was not possible. Therefore, the matter was posted to 01.02.2017. Again on 01.02.2017, time was prayed on behalf of the petitioner. The same was refused and the evidence of the defendant- petitioner was taken as nil and posted the matter for arguments of the defendant was taken as not addressed and the arguments of the plaintiff was heard and on that day itself, the case was posted for judgment on 14.02.2017. Hence, the present petitioner-defendant has filed three applications stated supra stating that during the year 2015, the defendant was in Dubai and returned to India only in the year 2016. She could not follow the court proceedings. Hence, she could not cross examine PW.1. It was only a bona fide mistake. She has a good case on merits. Therefore, she sought for a last opportunity to proceed with the case. The said application was resisted by the plaintiff by filing objection. The trial Court considering the aforesaid applications and the objections by the impugned order dated 02.03.2017 has dismissed IA.Nos.7 to 9 and posted the matter for judgment on 07.03.2017.
3. This Court while issuing emergent notice on 14.03.2017 has granted interim stay for a period of eight weeks. Subsequently, from time to time it was extended. In view of the dictum of the Hon’ble Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd & Anr. v. Central Bureau of Investigation reported in AIR 2018 SC 2039, the interim order granted expires automatically after six months. Therefore, the respondent has filed an application-IA.No.1/2018 for vacating of stay.
4. I have heard the learned Counsel for the parties.
5. Sri R.Gopal, learned Counsel for the petitioner- defendant contended that the impugned order passed by the trial Court rejecting the applications-IA.Nos.7 to 9 filed to reopen, recall, permission to proceed with the cross examination of PW.1 and to lead evidence and also to postpone the pronouncement of judgment, is erroneous and contrary to the material on record. He would contend that the petitioner had been to Dubai to take care of her daughter who was pregnant for certain months in the year 2015. There was settlement between the parties went on for sometime and when the matter was posted for settlement on 18.01.2017, it was not possible. Therefore, the matter was posted on 01.02.2017. On that day, the defendant could not be able to present due to the aforesaid reasons. In the interest of justice, the trial Court ought to have given an opportunity to the defendant since the suit is filed for recovery of a sum of Rs.51,91,780/-, but the same has not been done. In support of his contention, the learned Counsel for the petitioner has relied upon a decision of the Hon’ble Supreme Court in the case of K.K.VELUSAMY v. N.PALANISAMY reported in (2011)11 SCC 275, wherein it is held that in appropriate cases, the Court can exercise its discretion to permit reopening of evidence and/or recalling of witnesses for further examination/cross-examination after evidence led by parties is concluded and arguments have commenced or even when arguments have concluded and case has been reserved for judgment to meet the ends of justice and to prevent abuse of process of Court.
6. Per contra, Sri Veerendra R. Patil, learned Counsel for the respondent-plaintiff sought to justify the impugned order contending that after commencement of arguments, the matter was posted for judgment. When the matter was posted for judgment, the trial Court except pronouncing the judgment cannot entertain any application, in view of the dictums of this Court in the case of SUJATHA Vs. INDIAN BANK reported in (1996)1 KantLJ 310 and the Hon’ble Supreme Court in the case of ARJUN SINGH v. MOHINDRA KUMAR AND OTHERS reported in AIR 1964 SC 993. Therefore, he sought to dismiss the petition.
7. Having heard the learned Counsel for the parties, it is not in dispute that the respondent-plaintiff filed a suit for recovery of money of a sum of Rs.51,91,780/- as against the petitioner-defendant. The defendant has filed written statement denying the averments made in the plaint. It is also not in dispute that the matter was posted on 18.01.2017 for settlement. On that day, the settlement was not possible. Therefore, the matter was posted to 01.02.2017. Again on 01.02.2017, time was prayed on behalf of the petitioner. The same was refused and the evidence of the defendant-petitioner was taken as nil and posted the matter for arguments of the defendant was taken as not addressed and the arguments of the plaintiff was heard and on that day itself, the case was posted for judgment on 14.02.2017. Hence, the present petitioner- defendant has filed three applications-IA.Nos.7 to 9 to reopen, recall, permission to proceed with the cross examination of PW.1 and to lead evidence and also to postpone the pronouncement of judgment.
8. The trial Court by considering the entire order sheet has clearly observed that in this case in every stage of the proceedings, this Court has given more than sufficient opportunities to the defendant. Inspite of the same, the defendant was not diligent in prosecuting the case. In the affidavit annexed to these applications it is stated that since the defendant could not give information, her Counsel had cross examined PW.1 and since from the year 2015, she was in abroad and she came to India only in the year 2016, she could not prosecute the matter. Hence, it is not possible to accept contention of the defendant. Before the trial Court, the learned Counsel for the plaintiff has relied upon a decision of this Court in the case of SUJATHA Vs. INDIAN BANK reported in (1996)1 KantLJ 310, wherein it is held that once the Court post the case for judgment, there can be no application to recall or advance the hearing for any purpose other than pronouncement of judgment. Taking into consideration, the facts of the decision relied upon by the learned Counsel for the plaintiff and the facts of the case on hand are similar and the principles laid down in the said decision, the trial Court has dismissed the applications.
9. The material on record clearly depicts that since the matter was of the year 2014, the matter was posted on 18.01.2017 for settlement. On that day, the settlement was not possible. Therefore, the matter was posted to 01.02.2017. Again on 01.02.2017, the defendant was not present and the time was prayed on behalf of the petitioner. In all fairness, the trial Court ought to have given one more opportunity to proceed with the case, but the same has not been done by the trial Court. .
10. Though the learned Counsel for the respondent sought to justify the impugned order relying upon the judgment of the Hon’ble Supreme Court in the case of Arjun Singh stated supra, wherein the Hon’ble Supreme Court while considering provisions of Order 9 Rule 7 of CPC has held that if the entirety of the “hearing” of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX Rule 1 of CPC. Order 9 Rule 7 of CPC would not apply to set aside the ex parte order passed against the concerned aggrieved party. The said judgment has no application to the facts and circumstance of the present case.
11. In the case of K.K.VELUSAMY stated supra, the Hon’ble Supreme Court while considering the provisions of Section 151, Order 18 Rules 17 and 17-A of CPC has held that power under Section 151 of CPC can be exercised to deal with any particular procedural aspect which is not provided expressly or impliedly in CPC, in the ends of justice so warrant and to prevent abuse of process of court, court in appropriate cases can exercise its discretion to permit reopening of evidence and/or recalling of witnesses for further examination/cross-examination after evidence led by parties is concluded and arguments have commenced or even when arguments have concluded and case has been reserved for judgment.
12. The Hon’ble Supreme Court in the case of K.K.VELUSAMY stated supra has held that the convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exception or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of Court, subject to the limitation recognised with reference to exercise of power under Section 151 of CPC. It has further held at paras 12, 14 and 15 as under:
“12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions. We may summarise them as follows:
(a)Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is “right” and undo what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carle blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
15. The learned counsel for the respondent contended that once arguments are commenced, there could be no reopening of evidence or recalling of any witness. The contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interest of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognised with reference to exercise of power under Section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.”
13. This Court is also aware of the latest judgment of the Hon’ble Supreme Court in the case of Gayathri v. M.Girish reported in AIR 2016 SC 3559, wherein the Hon’ble Supreme Court considering the provisions of Order 17 Rule 1 of CPC held that virus of seeking adjournment has to be controlled in order to maintain majesty of law.
14. Keeping in view of the aforesaid judgments and the facts and circumstances of the suit in OS.No.32/2014 filed for recovery of money of a sum of Rs.51,91,780/-, if an opportunity is provided to the defendant-petitioner subject to payment of cost, no prejudice will be caused to the plaintiff-respondent. In view of the peculiar exceptional circumstances of the case, the petitioner has made out a case to interfere and to provide an opportunity to put-forth her case in accordance with law.
15. In view of the aforesaid reasons, the writ petitions are allowed. The impugned order dated 02.03.2017 passed by the Court of the Additional Senior Civil Judge, Sagar on IA.Nos.7 to 9 filed by the defendant in OS.No.32/2014 is hereby quashed. In the ends of justice and to prevent abuse of process of Court, it is a fit case to allow the applications-IA.Nos.7 to 9 filed by the defendant and accordingly, the same are hereby allowed, subject to payment of cost of Rs.15,000/- (Rupees Fifteen Thousand Only) payable to the plaintiff by the defendant before the trial Court on the next date of hearing subject to condition that on 10.04.2019, the petitioner-defendant shall proceed with the case to cross examine PW.1 and to lead evidence if any. She shall not seek any adjournments and shall cooperate with the trial Court to enable it to decide the case at the earliest.
16. It is also not in dispute that this Court granted an interim order on 14.03.2017 and the same was extended from time to time. The suit is pending for adjudication. Instead of delaying the proceedings, if the petitioner is permitted to proceed with the case on 10.04.2019, no prejudice will be caused to the plaintiff. On that day, the defendant shall be present before the trial Court. The defendant is permitted to cross examine PW.1 and to lead evidence on a day to day basis.
17. Taking into consideration the suit is of the year 2014 and we are in the year 2019, the trial Court is directed to dispose of the case subject to cooperation of the parties to the lis and to pass an appropriate order in accordance with law.
In view of disposal of the petitions, IA.No.1/2018 does not survive for consideration and the same stands dismissed.
Sd/- JUDGE LB