IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 7402 OF 2019 AND WRIT PETITION NOS. 9189-9190 OF 2019 (GM-CPC) BETWEEN:
SMT VIJAYALAKSHMI JAYADEVA W/O JAYADEV, AGED ABOUT 52 YEARS, R/AT NO. 1202-K, 19TH B MAIN, 1ST BLOCK, RAJAJINAGAR, BANGALORE - 560 010.
… PETITIONER (BY SRI. K S VENKATARAMANA, ADVOCATE) AND:
1. SRI GANGA MUTHAIAH @ VENKATARAMU, AGED ABOUT 56 YEARS, S/O LATE KALINGAIAH, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050.
2. SRI. JAGADISH S/O GANGAMUTHAIAH @ VENKATARAMU AGED ABOUT 35 YEARS, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050.
3. SRI. MUTHA BEERAIAH @ M. MAHADEVA SINCE DEAD BY HIS LRS (A) SMT. GANGAMMA W/O LATE MUTHABEERAIAH @ MAHADEVA AGED ABOUT 45 YEARS, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050.
(B) SWETHA D/O LATE MUTHABEERAIAH @ MAHADEVA AGED ABOUT 22 YEARS, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050.
4. SRI. MAHADEVA S/O LATE MUTHABEERAIAH, AGED ABOUT 26 YEARS, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050.
5. SRI. SHIVA KUMAR S/O LATE MUTHABEERAIAH @ MAHADEVA AGED ABOUT 22 YEARS, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050.
6. SRI. SHIVA BEERAIAH @ SHIVARAJU, S/O LATE KALINGAIAH AGED ABOUT 42 YEARS, RESIDENTS OF NO. 31/A, 9TH C CROSS ROAD, SRI NAGAR, BANGALORE - 560 050 … RESPONDENTS (BY SRI. NISHANTH A V, ADVOCATE FOR R1,2,3(A) & R6;
R3(B), R4,R5 & R6 SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.1.2019 ON IA NO.26, 27 AND 28 PASSED BY THE SENIOR CIVIL JUDGE AT MAGADI IN O.S.NO.97/2014 VIDE ANNEXURE-J AND CONSEQUENTLY ALLOW THE IA NO.26, 27. AND 28 VIDE ANNEXURE-D, E, F RESPECTIVELY FILED BY THE PETITIONER HEREIN THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the plaintiff in her suit for specific performance in O.S.No.97/2014 (Old No.571/2007) is knocking at the doors of Writ Court seeking to lay a challenge to the order dated 23.01.2019, a copy whereof is at Annexure-J whereby the learned Senior Civil Judge, Magadi, having rejected her applications in IA Nos. 27, 28 & 26 has denied leave to lead further evidence by producing a certain document. After service of notice, the contesting respondents having entered appearance through their counsel, resist the writ petitions.
2. Learned counsel for the petitioner finds fault with the impugned order on the ground that in the recent past, i.e., in the last part of 2018, the recording of evidence has been accomplished; the Court below is not justified in denying leave on the ground that the suit is of the year 2007 and the plaintiff herself has dragged on the proceedings for twelve years; he also finds fault with the reasoning of the Court below as reflected in paragraph No.11 of the impugned order, where the learned judge has held that these documents are not relevant. So arguing, the learned counsel seeks allowing of the writ petitions.
3. Learned counsel for the contesting respondents, per contra, contends that suit is of the year 2007; the petitioner has dragged on the proceedings for all these years, and now, years having lapsed, seeks leave of Court to produce certain documents at this belated stage and therefore the matter does not merit re-examination at the hands of writ Court; he further contends that the Apex Court, in more or less similar fact matrix has ruled that delayed production of evidence should not be favoured, vide K K VELUSAMY VS. PALANISAMY 2011 (11) SCC 275. So contending, he seeks dismissal of the writ petitions.
4. Having heard the learned counsel for the parties and having perused the petition papers and also having adverted to the decision of the Apex Court supra, this court is of the considered opinion that the trial Court ought to have accorded leave to the petitioner because:-
a) suit is of the year 2007 is true, but it came to be renumbered as O.S.No.97/2014 after being transferred to the present Court of trial; true also it is that the trial also has been held, but, it is concluded only on 05.11.2018 when the final recording of the evidence of the parties was accomplished; petitioner filed her applications on 17.12.2018 i.e., hardly about a month & a half after the trial was accomplished; even the ink of the order dated 05.11.2018 perhaps has not dried up; that being so, it cannot be said that these applications were made with an ill-design to protract the suit proceedings; consequently, the first reason assigned by the Court below falls to the ground;
b) the second reason assigned by the Court below that at this stage, the subject documents namely, the statement of accounts maintained by the Banker of the petitioner, for the relevant period is not relevant appears to be preposterous to say the least; ordinarily, a party to the litigation should have full opportunity to load to the case record all his evidence which he intends to produce, of course, subject to rule of admissibility & relevancy; the restriction enacted by the Parliament under Order XVI Rule 17 needs to be understood in a sense of doing justice to the parties and not for defeating it, the procedure being the hand-maid of justice; therefore, the second reason assigned by the Court below also meets the same fate;
c) the decision cited by the respondents’ side in the case of Velusamy supra, again does not come to his aid inasmuch as, the observation read out by the learned counsel was made in a peculiar fact matrix of that case wherein, years having rolled after the accomplishment of the trial, the party had sought for leave for leading additional evidence, that is not the case here; it is settled principle of law of precedent that a ratio of a decision should be understood in the backdrop of the fact matrix in which it is laid down since the ratio emerges not from the vacuum;
d) lastly, what prejudice would be caused to the respondents if the statement of accounts of the Bank for the relevant period, is now permitted to be produced has not been adverted to by the Court below except saying that the matter is being dragged by the petitioner on for long; the justice of the case requires that the subject documents should be permitted to be loaded to the record of the case of course, subject to cost & condition.
In the above circumstances, these writ petitions succeed; impugned order is invalidated; petitioner’s subject applications are favoured; accordingly leave as sought for, subject to petitioner paying a cost of Rs.5,000/- to the respondent, within one month or on the next date of haring of the suit, whichever is later, failing which the order now quashed shall stand resurrected; further, petitioner shall not make any more application of the kind nor shall she seek any adjournment in the suit except on a cost of Rs.2,000/- every time.
It is needless to mention that the relevancy & admissibility of the subject documents are not addressed by this Court.
Since suit is originally of the year 2007, more than a decade having lapsed, the learned judge shall try & dispose off the suit within an outer limit of one year, and report compliance to the Registrar General of this Court.
Sd/- JUDGE Bsv