Karnataka High Court
Sri Kashi V Manjunath vs K.V Nagarathnamma on 1 March, 2016
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION Nos.16621-16623/2014 (GM-CPC)
BETWEEN:
SRI.KASHI V. MANJUNATH,
AGED 61 YEARS
S/O .LATE SRI.KASHI VISHWANATH SHETTY,
R/A. # 4033, EMARALD ISLE LANE,
SAN JOSE, CALIFORMIA-95135, USA,
REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER
SRI. R .G. VEERANARAYANA,
AGED 55 YEARS,
S/O .SRI. R. V. GOPALA KRISHNA SHETTY,
NO.3794, KUVEMPU NAGAR,
19TH MAIN 3RD CROSS,
DAVANAGERE- 577 004.
... PETITIONER
(BY SRI. D. PRABHAKAR, ADV.)
AND:
1. K.V NAGARATHNAMMA
W/O LATE SRI. KASHI VISHWANATH SHETTY,
AGED ABOUT 80 YEARS
R/O SHASHI NIVASA,
ARSIKERE TOWN
B .H. ROAD,
ARSIKERE- 573 103.
2. K. V. SHIVKUMAR
S/O LATE SRI. KASHI VISHWANATH SHETTY
AGED ABOUT 45 YEARS
2
R/O SHASHI NIVASA,
ARASIKERE TOWN,
B .H. ROAD,
ARSIKERE- 573 103.
3. K. V. RAMESH
S/O LATE SRI. KASHI VISHWANATH SHETTY
AGED ABOUT 64 YEARS
R/O NO.16, KASHINIVASA,
GAVIPURAM EXTENSION,
2ND CROSS,
BANGALORE- 560 004.
4. H .K. SHANTHAKESHAVA
S/O H. V. KESHAVA MURTHY
AGED ABOUT 60 YEARS
M/S BALAJI ELECTRICALS STORES,
DODDAPETE, TIPTUR TOWN,
TUMKUR- 572 201.
5. SMT. P .S. RAJESHWARI
W/O B. N. SHIVSHANKAR,
AGED ABOUT 56 YEARS
R/O NO. 77/2, 3RD MAIN ROAD,
HANUMANTHANAGAR
BANGALORE- 560 094.
6. SMT. VIJAYLAKSHMI
W/O GOVINDARAJU,
AGED ABOUT 53 YEARS
SUBHASH NAGAR
ARSIKERE- 573 103.
7. SRI .NAGAVIGNESHA
MINOR, S/O SHIVAKUMAR,
RESIDING AT SHASHINIVAS
B. H. ROAD,
ARASIKERE-573 103.
REP. BY FATHER SRI. SHIVAKUMAR,
8. TASHILDAR,
B .H. ROAD,
ARASIKERE - 573 103.
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9. CHIEF OFFICER
T .M. C
B. H .ROAD,
ARASIKERE-573 103.
10. SMT .K. HEMAPRAKASH
W/O LATE K. V. PRAKASH
AGED ABOUT 50 YEARS
11. SRI .K. SHREYAS PRAKASH,
S/O K .V. PRAKASH
AGED ABOUT 24 YEARS
12. SMT .SHRUTHI PRAKASH
W/O S. A. PAVAN
AGED ABOUT 26 YEARS
PARTIES NO.10 TO 12 ARE
RESIDING AT NO. 147/3,
MAKAI COMPLEX,
A. R .COMPOUND, MYSORE ROAD
BANGALORE- 560 018.
... RESPONDENTS
(BY SMT.S.V.SHOBHA DEVI, ADV. FOR R2 & R7
SRI. R. SRIDHAR HIREMATH, ADV. FOR R3
SRI. S.LAKSHMINARAYANA, AGA, FOR R8
SMT. SONA VAKKUND, ADV. FOR R10 TO R12.
NOTICE TO R5 IS DISPENSED WITH V/O DTD.21/1/16
R1, R4, R6 & R9 SERVED - UNREPRESENTED.)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH ASIDE THE ORDER DATE 17.2.2014
ON I.A.NO. 23,26 AND 27 IN FDP NO.07/2007 PENDING ON
THE FILE OF HONB'LE SENIOR CIVIL JUDGE AND JMFC,
ARSIKERE, VIDE ANNX-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
These petitions are filed by the petitioner, who was the petitioner in FDP proceedings, requesting the Court to set-aside the order dated 17.02.2014 passed on the applications I.A.Nos.23, 26 and 27 in FDP No.07/2007 by the Senior Civil Judge & JMFC, Arsikere, produced at Annexure-A. The said applications i.e., I.A.Nos.23, 26 and 27 are filed in the FDP proceedings by respondent No.7 therein, which were opposed by the petitioner by filing the detailed objections; after considering the merits of the applications, ultimately, the Trial Court allowed the said applications. Being aggrieved by the said order, petitioner is before this Court.
2. Heard the arguments of the learned counsel appearing for the petitioner-plaintiff, the learned counsel appearing for respondent Nos.2 and 7 and the learned counsel appearing for respondent No.3, so also the learned AGA representing respondent No.8. 5
3. Learned counsel appearing for the petitioner during the course of arguments has submitted that respondent No.7 therein was not a party in the original suit, but he has been impleaded as a party in the final decree proceedings, who filed the applications requesting the Court to recall P.W.1 and respondent No.3 for cross-examination, another application was filed under Order 16 Rule 6 read with Section 151 of CPC to direct the petitioner to produce the documents pertaining to the discharge of loan of Rs.45 Lakhs. He has further submitted that in the application, the request itself is to recall P.W.1 and respondent No.3, learned counsel has also submitted that P.W.1 has expired and the dead person cannot be called for the purpose of cross-examination. So far as the order of the Trial Court is concerned, the Trial Court passed the order recalling P.Ws.1 and 2, but so far as P.W.2 is concerned, there is no request by the applicant for recalling P.W.2 for the purpose of cross-examination. 6 Therefore, when no such request made in the application even then, FDP Court proceeded to pass such illegal order recalling P.W.2 also, but in the application request is made to recall respondent No.3 and there is no whisper in the order with regard to respondent No.3.
Regarding discharge of the sum of Rs.45 Lakhs with regard to family debts and liabilities are concerned, learned counsel has submitted that it has been admitted by the father of respondent No.7 in the original proceedings; but the son, who is respondent No.7, who has been impleaded in the final decree proceedings, has filed the application requesting the Court to direct the petitioner to produce the documents with regard to the availment of loan by the father of respondent No.7 and payment of the said amount of Rs.45 Lakhs. Hence, it is the contention that in the original proceedings when the father of respondent No.7 has admitted and the decree was passed, which decree became final as no appeal was preferred in the FDP proceedings, 7 respondent No.7 cannot file such application and whatever admissions made by the father, they are binding on respondent No.7. Hence, this aspect has been completely overlooked by the Trial Court, and the Trial Court without considering what is the prayer made in the application, proceeded to pass the wrong order. Therefore, he has submitted that the impugned order is illegal and not sustainable in law.
4. Per contra, learned counsel for respondent Nos.2 and 7 during the course of arguments has submitted that regarding the discharge of family debt of Rs.45 Lakhs is concerned, respondent No.7, who is minor impleaded in the Final Decree Proceedings, wanted to know whether really such loan amount to the tune of Rs.45 Lakhs has been given by the petitioner, hence, the application was filed by respondent No.7 therein under Order 16 Rule 6 of CPC. Learned counsel has further submitted that said minor respondent No.7 has also filed independent suit, which is also pending. 8
Regarding the application for recalling of the witnesses is concerned, learned counsel has submitted that it is not P.W.1, who is a dead person, was requested for the purpose of cross-examination, but it is the petitioner herein, who was requested to be recalled for the purpose of cross-examination. Hence, she has submitted that these aspects were rightly considered by the Trial Court and ultimately, allowed the said applications. Hence, no illegality has been committed, nor there is any perverse or capricious view taken by the Trial Court in passing such order. Hence, learned counsel has submitted that there are no grounds for this Court to interfere into the said order and submitted to reject the petition.
5. Learned counsel for respondent No.3 has submitted that the impugned order passed by the Trial Court does not call for any interference by this Court. So also, the learned Government Advocate representing respondent No.8 has submitted that the order passed 9 by the Trial Court is legal and correct and hence, no interference is required in this petition.
6. I have perused the grounds urged in the petition and also the impugned order passed by the Trial Court, so also the three applications.
I.A.No.26 was filed by the applicant-respondent No.7 under Section 151 of CPC seeking permission of the Trial Court to file interim applications, which was supported by the memo of facts; I.A.No.27 was filed under Order 16 Rule 6 read with Section 151 of CPC requesting the Trial Court to issue summons to the petitioner in FDP Proceedings to produce the documents in connection with the availment of loan by the father of respondent No.7 and payment of the same i.e., to the tune of Rs.45 Lakhs, which was supported by the affidavit; and I.A.No.23 was filed under Section 151 of CPC requesting the Court to recall the petitioner and respondent No.3 for the purpose of cross-examination and it is supported by the memo of facts.
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7. The application I.A.No.23 is clear with regard to the prayer and request made in the said application that it is the petitioner and respondent No.3, who were to be recalled for the purpose of cross-examination. As I have already observed above in the order passed by the Trial Court, there is no reference with regard to respondent No.3 and the said order is completely silent that whether the request made by the applicant- respondent No.7 for recalling respondent No.3 is allowed or rejected; and regarding the petitioner is concerned, it is not the order that the petitioner in FDP proceedings is said to have been recalled and there are no such words in the said order. The Trial Court mentioned in its order that P.Ws.1 and 2 shall have to be recalled again. This observation made by the Trial Court in its order is not correct and it is not in accordance with the request made by the applicant-respondent No.7 in the application I.A.No.23.
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8. With regard to the application filed under Order 16 Rule 6 is concerned, it is the case of the petitioner herein that in the original proceedings there is an admission by respondent No.2, who is the father of respondent No.7, who filed the said application and who was not a party to the original proceedings, and on the basis of the said admissions by respondent No.2 and taking into consideration those admissions regarding the settlement of disputes and the payment of a sum of Rs.45 Lakhs, preliminary decree was passed by the Trial Court and the said decree became final as it was not challenged. When it is the specific contention of the petitioner that father of respondent No.7 has already admitted in the original proceedings, the Trial Court ought to have made the discussion with regard to the same before allowing the application filed under Order 16 Rule 6 that whether it is necessary to call for such documents from the custody of the petitioner and whether such a case has been made out by the parties 12 and the order of the Trial Court is silent with regard to these aspects.
9. Looking to these materials placed on record before the FDP Court, the FDP Court has not at all considered these relevant factual aspects while deciding the applications. It clearly shows that the Trial Court has not properly appreciated the request made by the parties in the applications; when I have already observed and at the cost of repetition, the order of the Trial Court shows that even P.W.2 also recalled, whereas, there is no such prayer in the application itself. Though there is prayer to recall respondent No.3, the order is silent that whether it is allowed or rejected. Under such circumstances, I am of the clear opinion that the Trial Court without properly considering the contents of the applications and also the supporting affidavit and memo of facts, passed the impugned order and committed serious error in passing such order on the applications. Therefore, the said order is illegal and 13 it will not sustain. Hence, petitioner has made out a case to allow the petition. Accordingly, petitions are hereby allowed. The impugned order dated 17.02.2014 passed on the applications I.A.Nos.23, 26 and 27 in FDP No.07/2007 by the Senior Civil Judge & JMFC, Arsikere by the common order is hereby set-aside and the matter is remanded back to the Trial Court.
The Trial Court is hereby directed to consider all the three applications afresh by giving opportunity to both the sides to submit their say and thereafter to pass an appropriate order in accordance with law.
Sd/-
JUDGE BSR Ct-sm