Karnataka High Court
Jilla Kurubara Sangha (R) vs H Krishnamurthy on 7 March, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2025:KHC:9882
WP No. 3909 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 3909 OF 2020 (GM-CPC)
BETWEEN:
JILLA KURUBARA SANGHA (R)
KURUBARA HOSTEL BUILDING
BALARAJ URS ROAD,
SHIVAMOGGA -577 201
RERPESENTED BY
1. THE PRESIDENT
JILLA KURUBARA HOSTEL BUILDING
BALARAJ URS ROAD,
SHIVAMOGGA -577201
2. THE SECRETARY
JILLA KURUBARA SANGHA
Digitally signed KURUBARA HOSTEL BUILDING
by ROOPA R U
Location: HIGH BALARAJ URS ROAD,
COURT OF
KARNATAKA SHIVAMOGGA -577 201.
...PETITIONERS
(BY SRI P.DHANANJAY FOR
SRI VARADARAJ RANGANATHA RAO HAVALDAR,
ADVOCATES)
AND:
1. H KRISHNAMURTHY
SINCE DEAD BY HIS LEGAL REPRESENTATIVES
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NC: 2025:KHC:9882
WP No. 3909 of 2020
(a) SMT. MAHILA
W/O LATE H. KRISHNAMURTHY
AGED ABOUT 67 YEARS
2. NACHIKETH H K
S/O LATE H. KRISHNAMURTHY
AGED ABOUT 43 YEARS
3. ANIKETH H K
S/O LATE H.KRISHNAMURTHY
AGED ABOUT 32 YEARS
ALL ARE R/O BOMMANAKATTE VILLAGE
HIRIYURU POST
BHADRAVATHI TALUK,
PIN 577302
...RESPONDENTS
(V/O DATED 26.07.2024, SRI JAYANTH KUMAR,
ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE SAID
IMPUGNED ORDER DATED 22.01.2020 PASSED ON I.As U/O 18
RULE 17 CPC (ANNEXURE-A) BY THE SAID TRIAL COURT IN
O.S.NO.1081/2012 WITH A DIRECTIONS TO THE HONBLE
TRIAL COURT TO GIVE ONE MORE OPPORTUNITY TO THE
PETITIONER/S TO CROSS EXAMINE THE WITNESSES OF THE
PLAINTIFF/S RESPONDENT/S AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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NC: 2025:KHC:9882
WP No. 3909 of 2020
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
Petitioners who are the defendants in suit in O.S.No.1081/2012 on the file of I Additional Civil Judge and JMFC, Shivamoga are before this Court being aggrieved by the order dated 22.01.2020 passed on Interim Application filed by the petitioners/defendants herein under Order 18 Rule 17 read with Section 151 of CPC rejecting the same with cost of Rs.1000. The above suit is filed by the respondents/plaintiffs for the relief of permanent injunction restraining the defendants/petitioners herein from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs.
2. Written statement has been filed by the petitioners/defendants denying the plaint averments. Evidence of the respondents/plaintiffs seems to have been recorded. By the above, defendants/petitioners have filed the application sought to recall of the evidence of PW.2 and for further cross- examination. Reasons assigned in the application is that, due to personal inconvenience of the advocate, witness PW.2 could not be cross-examined and when the adjournment sought by -4- NC: 2025:KHC:9882 WP No. 3909 of 2020 the junior of the said advocate, the Court declined to grant adjournment and without an opportunity to cross-examine the PW.2, the matter was posted for evidence of the defendants to 24.10.2019. However, instead of taking the date as 24.10.2019, a wrong date was taken as 19.11.2019, by which time the matter was closed for evidence and was posted for arguments. It is under these circumstances, the above applications have been filed.
3. Common objections have been filed by the legal representatives of the respondents/plaintiffs contending that sufficient opportunities have been granted by the petitioners/defendants, inspite of which no attempts were made by them to cross-examine the PW.2 or to lead evidence. Hence, sought for dismissal of the application.
4. The Trial Court by the impugned order rejected the application by holding that the suit is pending for seven years and that the similar applications had been filed earlier, which were though allowed granting opportunity to the defendants, they did not comply with orders and defendants as well as learned counsel for the defendants remained absent on the -5- NC: 2025:KHC:9882 WP No. 3909 of 2020 subsequent hearing dates. Even when the matter was listed for evidence of the defendants, the defendants had remained absent. Since sufficient opportunities had been granted the Trial Court deemed it appropriate to reject the application with cost of Rs.1,000/-. It is this order which has been challenged in this writ petition.
5. Despite service of notice, there is no representation on behalf of the respondents.
6. Learned counsel for the petitioners submits that the defendants are claiming the right over the suit property in terms of the grant made and the defendants are in possession of the same running ''Jilla Kurubara Sangha''. That if an opportunity is granted to cross-examine the witness and to lead evidence, the purpose of the petition be served. He also relies upon the judgment of this Court in the case of Laxminarayan Enterprises Vs. Lakshminarayana Textile and Others reported in ILR 2000 KAR 820 in support of his submissions to contend that, party to a suit can maintain an application even at the stage when the case is posted for judgment, for the purpose of either filing material pleading or to adduce material -6- NC: 2025:KHC:9882 WP No. 3909 of 2020 evidence for just and proper decision. Thus relying upon said judgment learned counsel for the petitioners seeks allowing the petition, granting them an opportunity to cross-examine PW.2 and to lead evidence.
7. Heard and perused the records.
8. The Hon'ble Apex Court in the case of K.K. Velusamy Vs. N. Palaaniswamy reported in (2011) 11 SCC 275 dealing with identical situation at paragraph Nos.9, 12 and 13 has held as under:
'' 9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power.
The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate - 2009 (4) SCC 410].
.....
12. The respondent contended that section 151 cannot be used for re- opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of -7- NC: 2025:KHC:9882 WP No. 3909 of 2020 section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.-8-
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(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
13. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. '' -9- NC: 2025:KHC:9882 WP No. 3909 of 2020
9. The only reason assigned by the Trial Court for rejection of application is the pendency of the suit and earlier opportunity having been given to the petitioners. Technicalities of the matter cannot come in the way of dispensation of justice.
10. Learned counsel for the petitioners at this juncture submits that this Court while granting interim order had directed the petitioners to deposit Rs.10,000/-, which has been duly complied with and submits that the said amount be directed to be deposited towards the cost. He submits given an opportunity Plaintiff witness would be cross-examined and that he will also lead evidence on the very same day. He further submits that he would not take any further adjournment in the matter.
11. Submission is taken on record.
12. In the light judgment of Hon'ble Apex Court in the case of K.K. Veluswamy(Supra) as mentioned hereinabove and the reasons assigned by the Trial Court, this Court is of the considered view, petition deserves to be allowed providing an opportunity to cross-examine PW.2 and to lead evidence.
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NC: 2025:KHC:9882 WP No. 3909 of 2020
13. Accordingly, following:
ORDER
(i). Petition is allowed.
(ii). Impugned Order dated 22.01.2020 is set aside and I.A. filed under Order 18 Rule 17 read with Section 151 of CPC is allowed.
(iii). The Trial Court is directed to recall PW.2, enabling the petitioners/defendants to cross-
examine the said witness and shall give an opportunity to the petitioners/defendants to cross-examine the said witness and shall also provide an opportunity to the petitioner/defendants to lead evidence.
(iv). It is made clear that the petitioners/defendants shall not seek any
adjournments, on any count whatsoever and shall cross-examination of PW.2, on the date to be fixed by the Trial Court and shall also file their evidence on the very same day. The Trial
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NC: 2025:KHC:9882 WP No. 3909 of 2020 Court shall provide an opportunity to the plaintiff to cross-examine the defendant witness thereafter proceed with the matter in accordance with law.
(v). The cost which is deposited before this Court be transmitted to the Trial Court, which in addition is to be paid in towards the payment of cost imposed by the Trial Court.
SD/-
(M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 22