Karnataka High Court
Sri. Diwakar. K vs Smt. Chinnamma on 18 April, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.10528/2017 (GM-CPC)
BETWEEN:
SRI. DIWAKAR.K
S/O.KRISHNAPPA
AGED ABOUT 36 YEARS
R/A KATRIGUPPA VILLAGE
KUNGUR POST
SARJAPURA HOBLI
ANEKAL TALUK
BENGALURU - 562106
...PETITIONER
(BY SRI.VINAYAKA BHAT. ADV.)
AND:
1. SMT. CHINNAMMA
W/O LATE MALEYAPPA
AGED 71 YEARS
2. SRI. M. MOHAN KUMAR
S/O LATE MALEYAPPA
AGED ABOUT 53 YEARS
3. MASTER VINAY
S/O M.MOHAN KUMAR
AGED ABOUT 16 YEARS
SINCE MINOR, REP. BY
FATHER & NATURAL GUARDIAN
4. SRI. M.SRINIVAS
S/O LATE MALEYAPPPA
AGED ABOUT 51 YEARS
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5. SMT. K.SHEELA
D/O M SRINIVAS
AGED ABOUT 29 YEARS,
6. MS. SHILPA
D/O M.SRINIVAS
AGED ABOUT 27 YEARS
7. SRI. SHIVAKUMAR
S/O SRI M SRINIVAS
AGED ABOUT 25 YEARS
8. SRI. M.VENKATESH
S/O LATE MALEYAPPA,
AGED ABOUT 45 YEARS
9. KUM.CHANDRIKA
D/O M.VENKATESH
AGED ABOUT 17 YEARS,
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
10. KUM.RACHANA
D/O VENKATESH
AGED ABOUT 13 YEARS,
SINCE MINOR, REP. BY FATHER
& NATURAL GUARDIAN
11. MS. SHANTHAKUMARI
D/O LATE MAYELAPPA,
W/O SRI.PRAKASH
AGED ABOUT 43 YEARS,
12. SRI M.VIJAYABHASKAR
S/O LATE MAYELAPPA
AGED ABOUT 41 YEARS,
13. SRI. VIVEK
S/O M VIJAYBHASKAR
AGED ABOUT 17 YEARS
SINCE MINOR, REP BY FATHER
& NATURAL GUARDIAN
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14. KUM. MANISHA
D/O VIJAYA BHASKAR
AGED ABOUT 15 YEARS
SINCE MINOR, REP BY FATHER
& NATURAL GUARDIAN
RESPONDENT NOS.1 TO 14
R/AT PLOT NO.207
RANGASWAMY STREET
YEMALUR VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE 560037
15. SRI. V. K. R. S. V. PRASAD RAO
S/O LATE PEDDAVENKATESHWARALU
AGED ABOUT 56 YEARS,
R/AT NO.2/19/, PANCHAJANYA
CONSTRUCTIONS PVT LTD
FOREST OFFICE ROAD
MADHADEVENAGAR
KADINDA, ANDHRA PRADESH-533033
16. M/S SHREE PANCHAJANAYA
INFRASTRUCTURE PVT LTD
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES
ACT HAVING ITS REGISTERED
OFFICE AT NO.2/19/3
PANCHAJANYA CONSTRUCTIONS
PVT LTD FOREST OFFICE ROAD,
MADHADEVANAGAR KAKINDA,
ANDHRA PRADESH-533033
REP BY ITS MANAGING DIRECTOR
SRI V K R S V PRASAD RAO
17. SRI. V. K. R. S. V. PRASAD RAO
MANAGING DIRECTOR
M/S SHREE PANCHAJANAYA
INFRASTRUCTURE PVT LTD
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMAPNIES ACT
HAVING ITS REGISTERED
OFFICE AT NO.2/19/3,
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PANCHAJANYA CONSTRUCTIONS
PVT LTD, FOREST OFFICE ROAD,
MADHADEVENAGAR KAKINDA,
ANDHRA PRADESH-533033
18. SRI.K.N.MOHAN REDDY
S/O SRI.D.NARAYANA REDDY
AGED ABOUT 42 YEARS
R/AT GULMAHAR FARM
VINAYAKA NAGAR, GUNJUR
MAIN ROAD VARTHUR,
BANGALORE-560 087
19. SRI.M.SHANKARAPPA
S/O LATE MUNIYAPPA
AGED AOUT 43 YEARS
R/AT CHOWDESHWARI
TEMPLE STREET VARTHUR,
BANGALORE-560 087
... RESPONDENTS
(BY SRI. UDAY HOLLA, SR.COUNSEL A/W SRI. VIVEK
HOLLA FOR C/R15 TO 17;
SRI. NARAYANAREDDY ADV. FOR R1 TO 14 [WHO
APPARED BEFORE THE TRIAL COURT];
NOTICE TO R18 & 19 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
IMPUGNED ORDER DATED 10.02.2017 PASSED ON
I.A.NO.4 IN O.S.26719/2013 ON THE FILE OF XXVIII
ADDL.CITY CIVIL AND SESSION JUDGE, AND
CONSEQUENTLY ALLOW I.A.NO.4 VIDE ANNEXURE-A
THIS PETITION COMING ON FOR 'PRELIMINARY
HEARING' THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard Sri. Vinayaka Bhat, learned counsel appearing for petitioner, Sri. Narayana Reddy, learned counsel appearing for respondent Nos.1 to 14 and Sri. Uday Holla, learned Senior counsel appearing for respondent Nos.15 to 17. Notice to respondent Nos.18 and 19 has been dispensed with by order of even date.
2. Petitioner is plaintiff in O.S.26719/2013, which suit has been filed seeking specific enforcement of agreement of sale dated 17.04.2013. Application filed by the plaintiff for grant of temporary injunction came to be allowed by the trial court by order dated 30.04.2014. Being aggrieved by the same, an appeal was filed by respondent Nos.16 and 15 respectively in MFA Nos.6721/2014 c/w 6723/2014 and this court directed the trial court to dispose of the suit on day-to- day basis expeditiously at any rate on or before 31.08.2016.
3. When the matter had been listed for recording the evidence of plaintiff, affidavit in-lieu of 6 examination-in-chief came to be filed by plaintiff and thereafter, plaintiff did not appear before the trial court despite adjourning the matter on several dates and imposing costs also. Hence, suit came to be dismissed for non-prosecution on 30.06.2016. Thereafter, plaintiff filed a Miscellaneous Petition under Order IX Rule 4 of CPC in Misc. No.25091/2016 and trial court by order dated 29.08.2016 recalled the order of dismissal and restored the suit to its file. Thereafter, plaintiff filed an affidavit to get himself examined as P.W.1. When the matter was listed for further cross-examination on 28.09.2016, he did not appear and as such, trial court recorded the further examination-in-chief as nil. As could be seen from the order sheet of trial court, matter has been adjourned from time-to-time keeping in mind the direction issued by this court in MFA Nos.6721/2014 c/w 6723/2014 and yet plaintiff did not appear. Thereafter, trial court dismissed the suit for non-prosecution on 10.02.2017. In the meanwhile, plaintiff filed an application - Annexure-G under Section 151 of CPC, seeking recall of the order dated 7 29.09.2016 with leave to lead further evidence. Trial court considered the said application and by impugned order dated 10.02.2017 dismissed the application as well as suit. Hence, this writ petition has been filed by the unsuccessful plaintiff.
4. As undertaken on the last date of hearing, plaintiff has filed an affidavit today by way of undertaking whereunder plaintiff has undertaken that he would fully cooperate with the trial court and he would not cause any delay in disposal of the suit. He has further pleaded that on account of his ill-health, he could not appear on all the dates of hearing fixed by the trial court. Learned Senior Counsel appearing for respondents seriously opposes said prayer by contending that no material whatsoever has been produced by the plaintiff to substantiate his claim and there are no bonafide in the claim putforth by the plaintiff.
5. Taking into consideration that plaintiff has pleaded his inability to appear before the trial court on 8 all the dates of hearing on the ground of ill-health and affidavit supporting the application for recalling of order dated 29.09.2016 vide Annexure-G, it has been specifically pleaded by the plaintiff that he was suffering from "Acute Febrile Illness with severe dehydration and Acute Bacillary Dysentery" and had been advised complete rest, this Court is of the considered view that one final opportunity deserves to be granted to plaintiff of course by putting the plaintiff on strict terms, inasmuch as, the ailment which plaintiff has pleaded cannot be construed as so serious that he would be unable to even attend the Court, that too on all dates of hearing fixed by the Court. In that view of the matter, this Court is of the considered view that if trial court is directed to dispose the suit within a timeframe that would be fixed by this Court, it would meet the ends of justice and apprehension expressed by the learned Senior Counsel appearing for the respondents would also get allayed.
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6. Learned counsel for the petitioner has undertaken to deposit a sum of Rs.1,00,000/- (Rupees One Lakh only) before the trial court, which shall be done on or before the next date of hearing, which is fixed on 05.06.2017. Deposit of the costs shall be condition precedent for the plaintiff to tender further evidence in the case.
7. For the reasons aforestated, I proceed to pass the following:
ORDER
(i) Writ petition is hereby allowed.
(ii) Order dated 10.02.2017 passed on I.A.No.4 in O.S.No.26719/2013 by the XXVIII Addl. City Civil and Sessions Judge, Bengaluru, is hereby set aside.
(iii) I.A.No.4, Annexure-G, is hereby allowed subject to following conditions:
(a) Plaintiff shall tender himself for further evidence on 05.06.2017 and shall conclude the evidence of not only 10 himself but also of his witnesses, if any, on or before 20.06.2017.
Defendants would be at liberty to cross-examine the plaintiff and his witnesses, if any.
(a) Defendants would be at liberty to tender their evidence as well as evidence of their witnesses, if any, on or before 20.07.2017. Plaintiff would be at liberty to cross-
examine the witnesses.
(b) On conclusion of recording of evidence, trial court shall within 15 days thereafter hear the final arguments by fixing dates convenient to it and at any rate within the outer limit of 15.08.2017 and thereafter, pronounce the judgment on or before 30.08.2017.
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(c) In the event of either of parties were to seek for adjournment without any justifiable cause to the satisfaction of trial Court, it would be at liberty to regulate its proceedings by imposing costs keeping in mind Order XVII Rule 2 of CPC.
(iv) Trial court would be at liberty to award costs from out of the amount deposited by plaintiff or refund to the plaintiff as the case may be. In other words, costs shall follow the cause.
Ordered accordingly.
SD/-
JUDGE DR/JS