Karnataka High Court
Sri Umesha vs Lakkamma on 27 August, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 27TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.49237 AND 49370-49372 OF 2013
(GM-CPC)
BETWEEN:
Sri. Umesha,
Son of Late Ganganna,
Aged about 40 years,
Resident of Melehalli,
Kora Hobli,
Tumkur Taluk - 572 104. ...PETITIONER
(By Shri. Sachin B.S., Advocate)
AND:
1. Lakkamma,
Wife of Late Bommanna,
Aged about 65 years,
2. Rajashekaraiah,
Son of Late Bommanna,
Aged about 42 years,
3. Bheemanna,
2
Son of Late Bommanna,
Aged about 40 years,
All are residents of Melehalli,
Kora Hobli,
Tumkur Taluk - 572 104.
...RESPONDENTS
(respondent Nos. 1 to 3 are served)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to quash the order dated
12.7.2013 on I.A.Nos. 10 to 12 and order dated 22.10.2013 on
I.A.No.13 in O.S.No.487/2004 on the file of the Court of the
Principal Civil Judge (Jr.Dn.) and JMFC., at Tumkur vide
Annexure-A and B.
These Writ Petitions coming on for Preliminary Hearing
in 'B' Group this day, the court made the following:
ORDER
Heard the learned Counsel for the petitioner. The respondents having been served, remain unrepresented. This court, in the first instance, having opined that the petitioner had made out a case prima facie for stay of further proceedings, had indeed granted an interim order of stay, by which time, however, the suit is said to have progressed. The background is as follows:-
3
It transpires that in a suit for declaration and injunction, the plaintiffs had tendered evidence and had reserved their right to lead rebuttal evidence on certain issues. The defendant having completed his evidence, the plaintiffs chose to lead rebuttal evidence, at which stage, the present petitioner had filed an application seeking to recall DW.1, to adduce certain addition evidence with reference to the documents that had been procured subsequently. Since the application was not accompanied by the documents, which were sought to be produced and since a copy of the application not having been served on the other side, the court has taken a serious exception and has summarily rejected the application. It is at that stage that the petitioner has approached this court.
In the meanwhile, the plaintiffs having been permitted to lead rebuttal evidence, the evidence has been tendered and the evidence has been closed and posted for final arguments. However, the suit has been stalled by virtue of the interim order granted by this court. Therefore, in the circumstances of the 4 case, since it is now stated by the learned counsel appearing for the petitioner, that the additional documents sought to be produced were revenue records and a mortgage deed and other particulars, which are readily available and if an opportunity is granted, the defendant would accordingly produce these documents to bolster her defence and to sustain her defence, in any event, since the additional evidence sought to be tendered is only to produce additional documents, no prejudice would be caused to the plaintiffs, if those documents indeed originate from reliable sources and would support the defendant's case there is no harm done in examining the same and adjudicating the matter in dispute. Since any such documents, if appropriate circumstances are made out, could even be received in an appeal under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity). Therefore, the law does contemplate receipt of documents if circumstances should have been established. Here, in the present case on hand, the negligence and want of 5 diligence on the part of the counsel for the defendant may have resulted in the present situation. Therefore, it is appropriate that if costs are imposed on the defendant in permitting to tender additional evidence, interests of justice would have to be served.
Accordingly, the petitions are allowed. The order of the court below rejecting the application which was not accompanied by the relevant documents and without having served a copy on the other side, shall not be repeated. The petitioner shall furnish a complete list of the documents along with an application, a copy of which is duly served on the other side, and the court below shall take the same on record and the petitioner shall be permitted to tender evidence. The respondent - plaintiff may be permitted to cross-examine the witness examined to produce and mark those documents.
It is made clear that in the guise of tendering such additional evidence, the petitioner shall not be entitled to touch upon the matters, which were reserved to be established by 6 way of rebuttal evidence by the plaintiff. It is only in order to enable the petitioner to bring on record certain additional documents pertaining to the issues in respect of which, the plaintiff had not reserved his right to lead rebuttal evidence, the petitioner shall pay costs of Rs.3,000/-.
Sd/-
JUDGE nv