Sri Rajiv Kumar Gupta vs Sri Somashekar Murthy @ H P Somashekar on 18 September, 2012

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Karnataka High Court

Sri Rajiv Kumar Gupta vs Sri Somashekar Murthy @ H P Somashekar on 18 September, 2012

Bench: Ravi Malimath

                             1




    IN THE HIGH COURT OF KARNATAKA AT BANGALORE

          ON THE 18TH DAY OF SEPTEMBER 2012

                       BEFORE

        THE HON'BLE MR. JUSTICE RAVI MALIMATH

    WRIT PETITION NOS.22615-22616 OF 2012(GM-CPC)

BETWEEN :

1     SRI RAJIV KUMAR GUPTA
      S/O R N GUPTA,
      AGED ABOUT 53 YEARS

2     SRI DILIPKUMAR GUPTA
      S/O R N GUPTA,
      AGED ABOUT 51 YEARS

      BOTH ARE RESIDING AT
      NEW NO.8, OLD NO.22, 25, J-88
      22ND CROSS, KILARI ROAD,
      BANGALORE - 560 053,

      ALSO AT NO.105
      KILARI ROAD,
      BANGALORE - 560 053.            ...PETITIONERS

(BY SRI JAYARAM K, ADVOCATE)


AND :

1     SRI SOMASHEKAR MURTHY @
      H P SOMASHEKAR
      S/O H PUTTAIAH,
                             2




     AGED ABOUT 57 YEARS

2    SRI NARASIMHA MURTHY
     S/O LATE H PUTTAIAH,
     AGED ABOUT 47 YEARS

3    SMT SAVITHRI
     D/O H PUTTAIAH,
     AGED ABOUT 52 YEARS

4    SMT SOWBHAGYA,
     D/O H PUTTAIAH
     SINCE DECEASED BY HER LRs

4(a) SRI R SRINIVAS,
     S/O LATE SRI RAMAIAH,
     AGED ABOUT 60 YEARS

4(b) SRI DEEPAK
     S/O R SRINIVAS
     AGED ABOUT 31 YEARS

4(c) KUM CHAITHRA
      D/O R SRINIVAS
      AGED ABOUT 27 YEARS

     ALL ARE RESIDING AT
     NO.8, 22ND CROSS
     KILARI ROAD
     BANGALORE - 560 053.         ...RESPONDENTS

(BY SRI G S VENKAT SUBBARAO, ADVOCATE)

                      *****

     THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO SET ASIDE THE ORDER DATED 25.6.2012,
                              3




PASSED BY THE COURT OF CITY CIVIL & SESSIONS JUDGE
BANGALORE SITTING AT CCH-23 IN OS.NO.6022/09 ON
HER FILE, WHICH IS HERE AT ANNEXURE-M & ALLOW THE
PETITIONERS TO CROSS- EXAMINE THE PW-1, IN THE
LINE OF THEIR DEFENCE AS TAKEN IN THEIR WRITTEN
STATEMENT IN OS.NO.6022/09.

     THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-

                         ORDER

The respondents-plaintiffs filed a suit for ejectment. During the evidence of P.W.1 the petitioners-defendants who cross-examined the P.W.1. sought for adjournment on the ground that the agreement of sale has to be confronted to the witness. The same was required to prove the defence taken in the written statement. The trial Court rejected the plea. It was of the view that the defence is about the execution of the agreement of sale wherein the proof of which will be the subject matter of an issue in another suit and hence those questions cannot be considered in the present suit. Therefore the question regarding the agreement of sale cannot be allowed. 4 Aggrieved by the same, the defendants have filed the present Petition.

2. The learned counsel for the petitioners contends that even though initially he was a tenant, by virtue of an agreement of sale his possession from that day onwards continues as an agreement holder. He has also filed O.S.No.3085/2009 seeking specific performance of that agreement of sale. It is that agreement that he intends to confront P.W.1 which was rejected.

3. The learned counsel for the respondents on the other hand contends that the agreement of sale cannot be confronted for various reasons. That firstly it is unregistered and secondly that this suit has no nexus with the subject matter of the other suit. This is a suit for ejectment. The earlier suit is for specific performance. Therefore he pleads that the trial Court has rightly disallowed the same.

4. On hearing the learned counsels and examining the impugned order I'am of the considered view that appropriate relief requires to be granted. The contents of the agreement, the validity of the agreement, the admissibility of the agreement are all questions that the respondents-plaintiffs can very well plead at an appropriate point of time. The trial Court should necessarily consider the objections on all these Issues. These are the relevant issues at that point of time. However, it has disallowed the plea of the defendants to confront the agreement to the witness. In my considered view it is incorrect. It would deny an opportunity to the defendants to put forth their case or confront such a document to the witness. He has every right to do so. The repercussions of such a question or such confronting would necessarily have to be considered by the trial Court either on omission or any objection by the plaintiffs. Under these circumstances, the impugned order declining the request 6 of the petitioners to enable them to confront the agreement of sale requires to be set aside.

For the aforesaid reasons, order dated 25-6-2012, passed by the court of City Civil & Sessions Judge Bangalore in O.S.NO.6022/2009 is set aside. the Petitions are allowed. The petitioners are permitted to confront the agreement of sale to P.W.1. Necessarily the respondents are at liberty to raise such issues with regard to the same as mentioned hereinabove before the court.

Sd/-

JUDGE Rsk/-

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