Karnataka High Court
Mr Mohammed Shabbir vs Mr Siraj Rehamathulla on 30 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.2007-2008/2018 (GM-CPC)
BETWEEN:
1. MR. MOHAMMED SHABBIR,
AGED 45 YEARS,
SON OF HAJI ISMAIL SAIT,
NO. 72/1, LAVELLE ROAD,
2ND CROSS, BANGALORE
BANGALORE - 560 043.
ALSO AT:
NO.T-02/03, III FLOOR,
GOLD SIGNATURE,
NO.95, MOSQUE ROAD,
FRAZER TOWN,
BANGALORE - 560 005.
2. M/S GOLD ENTERPRISES
AND DEVELOPERS PVT. LTD.,
A PARTNERSHIP FIRM CONSTITUTED
UNDER THE PROVISIONS OF THE
INDIAN PARTNERSHIP ACT 1932
WITH ITS OFFICE FORMERLY AT
NO. 79/1, 2ND CROSS, LAVELLE ROAD,
BANGALORE - 560 001.
2
LATER AT T-02/03, IIIRD FLOOR,
"GOLD SIGNATURE"
NO. 95, MOSQUE ROAD,
FRAZER TOWN,
BANGALORE - 560 005.
NOW AT:
#5 AC, 3RD FLOOR, 981,
HRBR I BLOCK,
OUTER RING ROAD,
KALYAN NAGAR,
BANGALORE - 560 043.
REPRESENTED BY ITS
MANAGING PARTNER,
MR. MOHAMMED SHABBIR.
... PETITIONERS
(BY SRI RAHUL CARIYAPPA, ADVOCATE FOR
SRI M. G. S. KAMAL, ADVOCATE)
AND:
1. MR. SIRAJ REHAMATHULLA,
AGED 63 YEARS,
SON OF REHMATHULLA SAIT,
PRESENTLY RESIDING AT
NO.S-01, SECOND FLOOR,
EASTERN COURT, NO.24,
COLES ROAD, FRAZER TOWN,
BANGALORE - 560 005.
ALSO AT:
TF-301, THIRD FLOOR,
GOLD CASA APARTMENTS,
3
(ALSO KNOWN AS GOLD ENCLAVE),
NEW NO.5, OLD NO.16,
AHMED SAIT ROAD, FRAZER TOWN,
BANGALORE - 560 005.
2. MR. YASSIR SIRAJ,
AGED 32 YEARS,
SON OF SIRAJ REHAMATHULLA
PRESENTLY RESIDING AT
NO.S-01, SECOND FLOOR,
EASTERN COURT NO.24,
COLES ROAD, FRAZER TOWN,
BANGALORE - 560 005.
ALSO AT :
TF-301, THIRD FLOOR,
GOLD CASA APARTMENTS,
(ALSO KNOWN AS GOLD ENCLAVE),
NEW NO.5, OLD NO.16,
AHMED SAIT ROAD, FRAZER TOWN,
BANGALORE - 560 005.
3. MR. SAAD SIRAJ,
AGED 26 YEARS,
SON OF SIRAJ REHAMATHULLA
PRESENTLY RESIDING AT
NO.S-01, SECOND FLOOR,
EASTERN COURT NO.24,
COLES ROAD, FRAZER TOWN,
BANGALORE - 560 005
ALSO AT:
TF-301, THIRD FLOOR,
GOLD CASA APARTMENTS,
4
(ALSO KNOWN AS GOLD ENCLAVE)
NEW NO.5, OLD NO.16,
AHMED SAIT ROAD, FRAZER TOWN,
BANGALORE - 560 005.
... RESPONDENTS
(BY SRI ARJUN P. REGO, ADVOCATE FOR
MR. L P E REGO, ADVOCATE FOR C/R)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 5.12.2017 PASSED BY THE
XXVIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
BENGALUR (CCH-29) VIDE ANNEXURE-A AND
CONSEQUENTLY ALLOW THE APPLICATIONS I.A.VIII AND
IX [ANNEXURE-B AND C] FILED BY THE PETITIONERS
HEREIN.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The present writ petitions are filed by defendant Nos.1 and 2 against the order dated 5.12.2017 made in O.S. 25509/2013 on the file of the Additional City Civil & Sessions Judge, Bengaluru, dismissing I.A. No.VIII/2017 filed under Section 151 of Code of Civil Procedure to 5 re-open the case and also I.A. No.IX/2017 filed under Order XVIII Rule 17 of Code of Civil Procedure to recall the order dated 21.11.2017 and to permit the defendants to cross- examine PW.1.
2. The respondents - plaintiffs filed the suit for Permanent Injunction restraining the defendant Nos.1 to 4 from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs and also for restraining the defendant Nos.1 to 4 from alienating the suit schedule property in any manner to the 3rd parties and to direct defendant Nos.1,2 and 3 to perform the Agreement to Sell dated 1.4.2011 and for directing the Registry of the Court to execute a Deed of Sale conveying the schedule property jointly to the 2nd and 3rd plaintiffs etc., raising various contentions. The defendants filed the written statement denying the plaint averments and the agreement and sought for dismissal of the suit. 6
3. When the matter was posted for cross-examination of PW.1, the defendants have not cross-examined him despite PW.1 was present and therefore the trial Court taken the cross-examination of PW.1 as closed and posted the suit for arguments. At that stage, defendants filed I.A. No.VIII/2017 under Section 151 of Code of Civil Procedure to re-open the case from the stage of arguments for cross- examination of PW.1 and I.A. No.IX/2017 under Order XVIII Rule 17 r/w Section 151 of Code of Civil Procedure to recall the order dated 21.11.2017 and permit the defendants to cross-examine PW.1, reiterating the averments made in the plaint. The same was opposed by the plaintiffs by filing objections and contended that inspite of granting sufficient time, the plaintiffs were not offered to cross-examine. Therefore the trial Court is justified in taking the cross- examination of PW.1 as closed and posting the matter for arguments.
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4. The trial Court considering the application and the objections by the impugned order dated 5.12.2017 dismissed the said applications with costs of Rs.3,000/-. Hence the present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Rahul Kariyappa, learned counsel for the petitioners contended that the subject matter of the present suit and the subject matter of O.S. No.1203/2011 filed by plaintiff No.1 is similar and identical and O.S. No.1203/2011 was dismissed on 2.11.2017 and the materials placed in the said suit have to be placed in the present suit during cross- examination of PW.1 and hence there was some delay on the part of the defendants to cross-examine PW.1. The delay in cross-examination of PW.1 was not intentional and it was beyond the control of the defendants. He would further contend that the rights of the parties are involved in 8 the suit to enforce the Agreement to Sell dated 1.4.2011. Therefore the parties should not be deprived on technicalities. Therefore opportunity ought to have been given by imposing costs. The same has not been done. Therefore he sought to quash the impugned order by allowing the writ petitions.
7. Per contra, Sri Arjun Rego, learned counsel for the respondents - plaintiffs sought to justify the impugned order. He further contended that inspite of granting sufficient opportunities for more than one year, the defendants have not cross-examined PW.1. Though the suit is of the year 2013 and we are in the year 2018, the defendants are dragging the matter. He would further contend that on an earlier occasion, similar applications filed were allowed and inspite of the same, the defendants did not avail opportunity and cross-examine PW.1 and dragging on the proceedings. Therefore he sought to dismiss the writ petitions.
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8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed the suit to enforce the agreement dated 1.4.2011 and the amount involved is more than one crore rupees and the rights of the parties are involved in respect of plaint 'A', 'B' and 'C' schedule immovable properties and the rights of the parties should not be deprived on technicalities. The trial Court recorded a specific finding that though on an earlier occasion, similar applications were allowed imposing costs, still the defendants have not cross-examined PW.1 and dragged the matter from 3.12.2016 till date and they are not showing any progress. Therefore the trial Court relying upon the judgment of the Hon'ble Supreme Court in the case of GAYATHRI .vs. M. GIRISH reported in AIR 2016 SC 3559 has dismissed the present applications.
9. The impugned order passed by the trial Court clearly depicts that on several dates though PW.1 was present, the defendants have not cross-examined him and 10 the same is not in dispute. But the fact remains that the rights of the parties are involved in respect of the immovable properties and the parties should not deprived on technicalities. This Court is aware of the judgment of the Supreme Court in the case of Gayathri stated supra. It cannot be forgotten that where the applications are filed bonafide and the cross-examination will assist the Court to clarify and determine the issue pending between the parties, the Court may exercise discretion. The materials placed on record clearly depict that there is some delay on the part of defendants to cross-examine PW.1. However, in view of the peculiar facts and circumstances of the case, this Court is of the considered opinion that one more opportunity should be given to the defendants to cross- examine PW.1 by imposing costs as a last chance.
10. For the reasons stated above, the writ petitions are allowed. The impugned order passed by the trial Court on I.A. No.VIII/2017 and IX/2017 made in O.S. 11 No.25509/2013 is quashed. I.A. Nos.VIII/2017 and IX/2017 are allowed subject to payment of costs of Rs.25,000/- (Rupees twenty-five thousand only) payable by the defendants to PW.1 on the next date of hearing. The defendants shall cross-examine PW.1 on the next date of hearing and proceed further with the suit, failing which the trial Court shall proceed in accordance with law.
Ordered accordingly.
Sd/-
JUDGE Gss/-