Karnataka High Court
Smt M.G. Sharada Bai vs Smt. Mytra on 9 August, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
1
WP No.1926/2018
and W.P.No.8067/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST , 2018
BEFORE R
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION NO.1926 of 2018 (GM-CPC)
and
WRIT PETITION NO. 8067/2018
BETWEEN:
1. Smt. M.G. Sharada Bai,
D/o. Late. M.H. Gangadhar,
Aged about 61 years,
2. Sri. M.C. Nikhiliesh,
S/o. Late M.G. Chandrashekar,
Aged about 25 years,
3. Sri. M.C. Pradeep,
S/o. Late. M.G. Chandrashekar,
Aged about 21 years,
Petitioners 1 to 3 are r/a
Old No.520, New No.122,
8th Main, Hosahalli Extension,
Vijayanagar, Bengaluru-560 040.
4. Smt. M.G. Pramila,
D/o. Late M.H. Gangadhar,
W/o. Narayan,
Aged about 61 years,
HMT Layout, Vidhyaranyapuram,
Bengaluru-560. . . . Petitioners
(By Shri. Gangadharaiah.A.N, Advocate)
2
WP No.1926/2018
and W.P.No.8067/2018
AND:
Smt. Mytra,
D/o. Late Sri. M.H. Gangadhar,
W/o. Sri. N. Srinivasan,
Aged about 55 years,
R/at No.37/3, 2nd Floor,
1st Main, 16th Cross,
S.R. Nagar,
Bengaluru-560 027. . . . . Respondent
(By Shri. P.D. Surana, Advocate)
These writ petitions are filed under Article-227 of the
Constitution of India, praying to set aside the impugned order
dated 06.12.2017 passed by the XXXIV Additional City Civil
Judge Bengaluru in O.S. No.5062/2008 on I.A. No. 18 & 19
filed by the petitioners, vide Annexure-F.
These writ petitions coming on for preliminary hearing,
this day, the court made the following:
ORDER
Having heard learned counsel for the parties and having perused the material placed on record, this Court is clearly of the view that on the facts and in the peculiar circumstances of the present case, the applications filed on behalf of the petitioner No.4 of this writ petition, who is defendant No.5 in the suit for partition and separate possession filed by the plaintiff/respondent (O.S.No.5062/2008), for reopening of the case and permission to lead further evidence, deserve to be 3 WP No.1926/2018 and W.P.No.8067/2018 granted on the terms of costs and with other conditions for expeditious proceedings; and the impugned order dated 06.12.2017, as passed by the Trial Court, in rejecting such a prayer, calls for interference.
Shorn of unnecessary details, the relevant background aspects of the matter are that the plaintiff/respondent filed this suit for partition and separate possession in the year 2008, in relation to the properties said to have been left by late Shri. M.H. Gangadhar, father of the plaintiff and defendant Nos. 2 &
5. The children of the deceased son of late Shri. M.H. Gangadhar are joined as Defendants 3 & 4 in this suit. The defendant No.1 in the suit was the mother of plaintiff and her siblings, who appears to have expired after filing of the written statement. In the suit so filed, the plaintiff-respondent has asserted, inter alia, that the suit schedule property was a joint family property and she was having equal right/share therein; and the same was yet to be divided between the parties. The plaintiff indicated her apprehension that defendant No.1 (her mother) was making hectic efforts to bequeath the property through a Will to one of her daughters and grandson; and 4 WP No.1926/2018 and W.P.No.8067/2018 alleged that the mother was not entitled to make any such bequest.
In the written statement filed by the defendant Nos 1 to 4, it has, inter alia, been asserted that defendant No.1 had executed a registered Will as per her wish and the same shall have legal force upon her demise, though she was having legal right even to cancel and execute her last Will. The other averments of the plaint and denial thereof need not be dilated for the purpose of this order.
The issues were framed in this suit on 04.09.2010; the cross-examination of the plaintiff was completed on 24.04.2014; and the defendant No.5 (petitioner No.4 herein) appeared as DW.1 and her cross-examination was completed on 23.06.2017. Thereafter, the matter was posted for hearing and the arguments on the side of the plaintiff were heard. When the matter was further posted for the arguments on behalf of defendants, two applications (IA-XIX & IA-XVIII), as aforesaid, were filed under Section 151 and Order XVIII Rule17 of the Code of Civil Procedure ('CPC'), on behalf of the defendant No.5, with the submission that the defendant No.1 5 WP No.1926/2018 and W.P.No.8067/2018 had executed a registered Will dated 06.10.2001 in favour of defendant No.2, but the attesting witnesses to the said Will could not be examined earlier, as both the attesting witnesses had passed away and their family details were not available to her. The defendant No.5 (petitioner No.4 herein) submitted that she had now obtained the details of legal representatives of the attesting witnesses and the death certificates relating to the said attesting witnesses; and that it was necessary for her to produce the death certificates of the attesting witnesses and also to lead further evidence by examining the surviving dependents of the deceased attesting witnesses to the Will. The applications so filed by the petitioners were put to stiff resistance on behalf of the plaintiff, with reference to the age of the suit and also its stage.
The Trial Court has rejected the applications so moved on behalf of the defendant No.5, inter alia, on the ground that the relevant witnesses were not examined at the earlier stage when the case was posted for defendants' evidence; and that the names of the legal representatives of deceased attesting witnesses had not been stated and nothing was pointed about 6 WP No.1926/2018 and W.P.No.8067/2018 the acquaintance of the signatures of the deceased attesting witnesses. The Trial Court also took into account the fact that by giving a chance to the defendants to lead further evidence, delay would be caused in disposal of the old suit of the year 2008. The Trial Court even observed that in order to avoid multiplicity of proceedings, it was just, proper and reasonable not to reopen the evidence at the final stage of the case. The Trial Court, inter alia, observed as under:
"10. In the application he has neither stated the names of the LRs of the deceased attesting witnesses or he has stated anything about the acquaintance of the knowledge and also acquaintance of the signature of the deceased attesting witnesses to the Will. Therefore, death even if it is admitted as true or denied as to be false, the only question before the Court is whether the witnesses sought are mandatory witnesses or not the same has to be chosen by the defendant. In case of death of the attesting witnesses he has not chosen to examine the relative witnesses of the deceased witnesses who have signed at earliest stage when case was posted for defendant evidence to prove the Will. Therefore, at this stage only to cause delay and drag on the matter on one or the other pretext he has filed such application. Therefore, court comes to conclusion that it is the oldest matter of 2008. Already evidence of plaintiff and defendant concluded and arguments on plaintiff's side completed before my learned predecessor. Now at this stage written arguments as filed by the advocate for the defendants for the 7 WP No.1926/2018 and W.P.No.8067/2018 application cannot be considered. The material on record if it is sufficient he has to convince the Court on the material aspect of the facts as well as law. Otherwise, the delay will be caused for the disposal of the case if the chance is given to the defendants to lead further evidence. In order to avoid multiplicity of proceedings of the case, it is just and proper and reasonable not to recall and reopen the evidence of defendants side at the fag end of the case. Hence, Points No.1 and 2 are answered in the negative."
It is contended on behalf of the petitioners, in relation to the order aforesaid, that the defendant's cross-examination was completed on 23.06.2017 and within reasonable time thereafter, the applications in question were filed on 01.08.2017 and, therefore, the petitioners cannot be blamed for the delay in this matter. It is also submitted that in the circumstances of present case, the Will is required to be proved and when the attesting witnesses have passed away and are not available for evidence, the prayer for examination of their legal representatives was not unjustified.
On the other hand, while supporting the order impugned, it is contended on behalf of the plaintiff-respondent that the provision of Order XVIII Rule 17 CPC cannot be operated in 8 WP No.1926/2018 and W.P.No.8067/2018 the manner as if to allow the petitioners to fill up the lacuna in their evidence. The decision of the Hon'ble Supreme Court, in the case of Ram Rati -vs- Mange Ram (dead) through legal representatives & others; (2016) 11 SCC 296 is relied upon.
As observed at the outset, this Court is inclined to grant indulgence to the petitioners-defendants, in the peculiar circumstances of the present case. Noticeable it is from the averments that have been taken in the original plaint, as also in the written statement filed in the matter, that even during the lifetime of the mother of the contesting parties, who had been arrayed as defendant No.1 in this suit, the preposition for bequeath by her was put to dispute by the plaintiff. The defendants, in their written statements (including the defendant No.1 at the relevant point of time), on the other hand, refuted the plaint averments and asserted that on the basis of rights available with defendant No.1, she had executed a Will, as per her wishes. This Court is not commenting on the validity or legal effect of the said Will, which shall remain a matter to be decided by the Trial Court after evaluating the evidence and in accordance with law but, the present one is not a case where 9 WP No.1926/2018 and W.P.No.8067/2018 the matter relating to Will is sought to be inserted at the later stage by the petitioner.
Further, the peculiar aspects of the matter are that, according to the petitioners, the attesting witnesses of the said Will have since expired. For a just and effectual determination of all the questions involved in the matter, it appears rather necessary that the relevant evidence, as regards the said attesting witnesses, is allowed to be adduced before final disposal of the suit.
The observations, as made by the Trial Court in this matter (as reproduced hereinabove) do not appear to be of relevant considerations in the correct perspective. Even if the names of the legal representatives of the deceased attesting witnesses were not mentioned in the applications so filed, the defendant could have been put to specification as required, or could have been put to any other terms; but mere want of the names of the legal representatives of the attesting witnesses in the applications cannot be considered fatal at this stage. The last observation that the witnesses were not to be recalled in order to avoid multiplicity of the proceedings, appears to be 10 WP No.1926/2018 and W.P.No.8067/2018 rather misplaced. If at all multiplicity of the proceedings is to be avoided, the correct approach of the Trial Court would be to take all the necessary/relevant evidence on record and to determine all the issues involved in the suit, rather than denying the same; of course, subject to all other factors concerning the requirement of expeditious proceedings.
So far as the stage of the suit is concerned, it is true that the suit was filed in the year 2008. However, the fact remains that the cross-examination of D.W.1 was completed only on 23.06.2017. Though the matter was posted for arguments thereafter but, before closing of the matter, the applications were filed and in the given set of peculiar circumstances of the case, the same could have been allowed, while putting the parties to reasonable terms, so as to effectually and completely determine all the questions in controversy.
The principles laid down by the Hon'ble Supreme Court, in Ram Rati's case (supra) are not of any debate. In the said case, the Supreme Court disapproved the order passed by the Trial Court, as endorsed by the High Court to recall the appellant as a witness for the so-called "further elaboration on 11 WP No.1926/2018 and W.P.No.8067/2018 the left out points by the parties". The relevant background aspects of the matter were that the appellant therein had filed a suit seeking perpetual injunction and he had been cross- examined by the respondents, who were defendants in the said suit. However, the suit so filed by the appellant was later on consolidated with another suit filed by the respondents, as both were involving the same property. Significantly, the respondent's suit, insofar as against the appellant, stood rejected for want of cause of action. The respondents, however, filed an application after consolidation of suits for invocation of power by the Court under Order XVIII Rule 17 read with Section 151 of CPC, so as to provide an opportunity to cross-examine the appellant over again. It was in this context the Supreme Court found that the views of the Trial Court and the High Court for recalling the witnesses, at the instance of the respondent, for "further elaboration on the left out points by the parties", to be wholly impermissible in law. The Hon'ble Supreme Court held that the power under Rule 17 of Order XVIII CPC cannot be invoked to fill up the lacuna in the evidence and is to be sparingly used. The Hon'ble Supreme Court also pointed out 12 WP No.1926/2018 and W.P.No.8067/2018 the guidance on invocation of Section 151 CPC to reopen the evidence or production of fresh evidence with reference to the decision in the case of K.K. Velusamy -vs- N. Palanisamy:
(2011) 11 SCC 275.
In the present case, the peculiar circumstances, as noticed above, are that the Will executed by mother of the contesting parties, is a matter having foundation in the plaint itself. The mother of the contesting parties, during her lifetime, had joined in filing the written statements to the suit while asserting her rights. Now, the defendants seek to submit that the attesting witnesses of the Will are not alive to be examined before the Court and hence, the applications were filed, seeking permission of the Court to produce the death certificates of the attesting witnesses and to examine the legal representatives of the deceased attesting witnesses. This Court is clearly of the view that if permission as prayed for is granted, the same would not result in unnecessary multiplicity of proceedings; rather, such a permission appears necessary for just, effectual and complete determination of all the questions involved in the matter. However, looking to the age of the suit and other 13 WP No.1926/2018 and W.P.No.8067/2018 circumstances, it appears appropriate to put the petitioners to the terms of costs and also for expeditious proceedings.
Accordingly, these writ petitions are allowed in the manner that the impugned order dated 06.12.2017 is set aside; and the applications (IA - XIX and IA - XVIII) filed by the defendant No.5 under Section 151 CPC and under Order XVIII Rule 17 CPC are allowed, with the following requirements:
i) Affidavits of two witnesses, who are now sought to be examined and the additional affidavit of DW.1, shall be filed on or before 30.08.2018, after giving advance copy to the learned counsel for the plaintiff-respondent.
ii) Both the witnesses, being now freshly examined, shall be kept available in the Court for cross-
examination on 03.09.2018. On the same day, DW-1 shall also be kept present in the Court for further cross-examination.
iii) It shall be required of the petitioners to deposit an amount of Rs.5,000/- (Rupees five thousand only) towards costs in the Advocates' Benevolent Fund, Bengaluru, on or before 30.08.2018.
14WP No.1926/2018 and W.P.No.8067/2018
iv) It is made clear that any omission on the part of the petitioners to comply with any of the requirements of this order i.e., payment of costs, filing of affidavits and keeping the witnesses present, would disentitle them from leading further evidence, as permitted by this Court.
v) It is also made clear that no adjournment in routine manner shall be granted for the purposes as required by this order.
It would be expected of the Trial Court to proceed with the matter with reasonable expedition and to ensure its disposal at the earliest.
These petitions stand disposed of accordingly.
Sd/-
CHIEF JUSTICE KNM/VR