Bombay High Court
Smt. Shalini Wd/O Sharad Kirwai vs Shankar Neelkantan Iyer on 27 April, 2012
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1000 OF 2012
1) Smt. Shalini wd/o Sharad Kirwai,
aged 78 years, occupation :
Retd. Employee, r/o 4, Gazetted
Officers Colony, Behind Law
College, West High Court Road,
Civil Lines, Nagpur.
2) Mrs. Vandana w/o Arun Pawade,
aged 53 years, occupation :
housewife, resident of 161,
Ramnagar, Nagpur-10.
3) Dr. Mrs. Archana w/o Kiran
Pawade, aged 33 years,
occupation : service, resident
of ESIS Hospital Staff Quarters,
Block No. 30, Type III,
Kandivali (E), Mumbai - 440 101.
4) Mrs. Bhavana w/o Anil Thengdi,
age 46 years, occupation :
service in Central Railway,
resident of Flat No. 002,
Muktangan Aprtments, Ahilya
Devi Smarak Lane, Dhantoli,
Nagpur - 12. ... Petitioners
- Versus -
1) Shankar Neelkantan Iyer,
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age 53 years, occupation :
Lecturer, resident of 3, Gazetted
Officers Colony, behind Law
College, West High Court Road,
Civil Lines, Nagpur.
2) 3rd Joint Civil Judge, Senior
Division, Nagpur. ... Respondents
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Shri A.C. Dharmadhikari, Advocate for petitioners.
Shri Rohit Joshi, Advocate for respondent no.1.
Shri P.V. Bhoyar, Assistant Government Pleader for
respondent no.2.
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Date of reserving the judgment : 12/4/2012
Date of pronouncing the judgment : 27/4/2012
CORAM : A.B. CHAUDHARI, J.
DATED : APRIL 27, 2012
JUDGMENT :
Rule returnable forthwith. Heard finally by consent of learned Counsel for the parties.
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2) This writ petition is directed against the order below Exh. 118, dated 20/2/2012 passed by the 3rd Joint Civil Judge, Senior Division, Nagpur whereby the said application came to be allowed.
3) I have perused the impugned order and seen the facts of the case.
ig The respondent no.1/plaintiff filed Special Civil Suit No. 733/1996 against the original defendant Sharad whose legal heirs are the petitioners before this Court, for specific performance of contract on the ground that the deceased had orally agreed to sell his house on Plot No. 4, Nazul Layout of Gazetted Officers' Colony, Civil Lines, Nagpur for a total consideration of Rs.12 lacs and in view of the oral contract of 29/10/1994, he had paid Rs.15,000/-
towards earnest amount and thus, there was a valid agreement of sale of the suit house. The plaintiff and defendant were the neighbours residing in the same Colony and in para (23) of the plaint, averments were made that oral conversation between late Sharad and ::: Downloaded on - 09/06/2013 18:28:45 ::: 4 wp1000.12 the plaintiff and the Mediator was recorded in an audio cassette, which will show readiness and willingness of the plaintiff for performing his part of the contract.
The suit was filed in the year 1996 and since then, on the basis of such alleged oral contract and alleged payment of Rs.15,000/- in cash, the suit property in Civil Lines, Nagpur has been successfully locked by the plaintiff by clearly abusing the process of Court, which will be evident from the subsequent proceedings in the suit.
4) It appears that the evidence started in the year 2008 and the suit filed in the year 1996 thus saw the stage of evidence. By application (Exh. 92), the plaintiff was recalled. In the said application, it was mentioned that recall of the plaintiff in the witness box was necessary since there was an inadvertent bonafide mistake in not proving the audio cassette and transcript because the same were not shown to the plaintiff and, therefore, for that limited purpose, ::: Downloaded on - 09/06/2013 18:28:45 ::: 5 wp1000.12 witness was required to be recalled. That application was allowed and on 5/9/2009 again the evidence of the plaintiff was recorded in terms of the said application (Exh. 92), but again the plaintiff was shown one notice and postal acknowledgment and neither audio cassette nor transcript was referred to him and the plaintiff then left the witness box. The plaintiff himself is qualified LL.B. and started his practice since 1990. Thereafter again application (Exh. 106) was filed by the plaintiff under Order XVIII Rule 17 of the Code of Civil Procedure to recall the plaintiff to adduce evidence on the limited point, namely, for proving the audio cassette and the transcript, etc. In the said application (Exh. 106), the plaintiff did not give any explanation as to why when he was recalled on 5/9/2009, the same was not done when specifically Exh. 92 was allowed for that purpose. This application was not pressed on 19/1/2010 by the plaintiff's Advocate A.P. Moharil, who has standing of not less than 35 years. Thereafter the proceedings were adjourned for evidence, but the ::: Downloaded on - 09/06/2013 18:28:45 ::: 6 wp1000.12 plaintiff did not bring any evidence on 30/1/2010 and he voluntarily closed his side. The defendant thereafter examined his witness and closed his side and the case was posted for arguments on 18/4/2011.
Thereafter the case was posted for arguments on 9/6/2011, 23/6/2011, 16/7/2011, 6/8/2011, 2/9/2011, 16/9/2011, 26/9/2011, ig 10/10/2011, 14/10/2011, 5/11/2011. On 5/11/2011 the plaintiff sought adjournment, which was granted subject to costs of rupees two thousand. In the meanwhile, the plaintiff filed an application on 5/11/2011 under Section 24 of the Code of Civil Procedure before the Principal District Judge vide M.C.A. No. 719/2011 for transfer of case from one Court to another on the ground that the Presiding Officer was biased and prejudiced and thus, the plaintiff was successful again in halting the proceedings in the trial Court. The said application for transfer was rejected by the Principal District Judge vide order dated 20/12/2011 and the reasons mentioned by him in paras (7) to (9) are reproduced ::: Downloaded on - 09/06/2013 18:28:45 ::: 7 wp1000.12 below :
"7) Mr. Moharil, learned advocate for applicant, was fair in submitting that only three documents from earlier suit placed on record of Spl. Civil Suit No. 733/1996, have been marked as exhibits. It is, thus, quite clear that documents, which were material have been marked as exhibits, so far as from Reg. Civil Suit No. 720/1995 is concerned.
8) Thus, even if, learned Judge of the Trial Court had allowed application for calling for record of Reg. Civil Suit No. 720/1995 and record is not made available so far, unless documents are taken out by way of certified copies and are placed on record of Spl. Civil Suit No. 733/1996, and proved, those cannot be read and looked into. Thus, the grounds sought to be made out in this proceeding that the learned Judge has not waited for record and directed the applicant to proceed with the arguments, can hardly be the ground for seeking transfer of Spl. Civil Suit No. 733/1996.
9) Moreover, it appears that Spl. Civil Suit No. 733/1996 is of year 1996 and thus, it would ::: Downloaded on - 09/06/2013 18:28:45 :::
8 wp1000.12 be everybody's concern to see that it is disposed of as expeditiously as possible. Therefore too, if the trial Court presses parties to proceed with the arguments and to finish it, so as to dispose of it quickly, it would not be a furnishing ground for the applicant to ask for transfer of the special suit terming the learned Judge as biased and having prejudice mind against him."
After the dismissal of the said transfer application, the plaintiff did not challenge the said order, but filed application (Exh. 118) praying for allowing him to adduce evidence only for a limited purpose, i.e. to prove audio cassette and transcript. The reasons given by the plaintiff in paras (5) and (6) of his application were that it was omitted through oversight, inadvertence, misconception of law and so on and so forth. Adv. A.P. Moharil has also filed affidavit in this petition so also the plaintiff to the same effect about the so called oversight, inadvertence and misconception of law. Though the said application was opposed, the trial Court has allowed the said ::: Downloaded on - 09/06/2013 18:28:45 ::: 9 wp1000.12 application by the impugned order.
5) At the outset I find that the impugned order is sans any reasons. The same were needed all the more so in the light of the background of the facts stated hereinbefore. The trial Court has not even considered the fact that Exh. 92 for recall of the plaintiff was allowed for the same purpose, namely, for proving the audio cassette and transcript, but that was never done.
Thereafter application (Exh. 106) was filed, but that was not pressed. Thereafter plaintiff voluntarily closed the evidence of his side. Thereafter the defendant examined his witness and closed his side and the case was posted for arguments and the case was adjourned from 18/4/2011 till 5/11/2011 when the plaintiff filed application for transfer by making false allegations against the Presiding Officer, i.e. of bias and prejudice.
That application was also rejected. That order was not challenged by him. His last attempt to stall the proceedings was met with an order of costs of ::: Downloaded on - 09/06/2013 18:28:45 ::: 10 wp1000.12 Rs.2000/- on 5/11/2011. It is after all these happenings on 20/2/2011 he filed application (Exh. 118) on which the impugned order came to be passed.
6) In the first place, the impugned order is vitiated because above factual background has not at all been considered and the learned trial Court has casually allowed the application (Exh. 118). It must be borne in mind that if one party has a right to prosecute his suit, the other party has also a right to have a fair opportunity and early disposal of the suit. However, without considering the fact that the plaintiff was deliberately delaying the proceedings and the reason appears to be that he has had no other evidence to prove the alleged oral agreement and was successful in locking the valuable property right from the year 1996, the trial Court allowed his application (Exh. 118) without recording any reason. The plaintiff was thus clearly guilty of abusing the process of Court and from 1996 till 2012, i.e. for 16 years, he has successfully ::: Downloaded on - 09/06/2013 18:28:45 ::: 11 wp1000.12 locked the properly only in the first Court. The trial Court should have seen that the petitioners could not be left high and dry merely because such a suit filed in the year 1996 based on alleged oral contract in respect of plot in Civil Lines, Nagpur. The plaintiff has his own house nearby. The plaintiff is savvy and clearly misused the process of the Court.
ig In this connection, the following observations of the Apex Court in para (19) of the judgment in K.K. Velusamy vs. N. Palanisamy {(2011) 11 SCC 275) would be apt to quote :
"19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice, and the Court is satisfied that non-production earlier was for valid and sufficient reasons, the ::: Downloaded on - 09/06/2013 18:28:45 :::
12 wp1000.12 Court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The Court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the Court should take up and complete the case within a fixed time schedule so that the delay is avoided.
ig Thirdly, if the
application is found to be mischievous or
frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs."
The respondent no.1/plaintiff has thus for no reasons abused the process of Court and, therefore, petitioners deserve to be compensated by way of compensatory costs. In the result, I make the following order :
i) The writ petition is allowed.
ii) Rule is made absolute in terms of prayer clause (A) of the writ petition.
iii) The trial Court is directed to decide Special Civil Suit No.733/1996 after hearing arguments of the parties within a period of one month from ::: Downloaded on - 09/06/2013 18:28:45 :::
13 wp1000.12 production of this judgment. The petitioners shall produce copy of this judgment before the trial Court within a period of one week from today.
iv) The respondent no.1/plaintiff shall pay compensatory costs of rupees twenty-five thousand to the petitioners, which shall be a condition precedent for hearing the arguments of the respondent no.1/plaintiff.
JUDGE At this stage, Shri Joshi, learned Counsel for respondent no.1, prays for stay of this judgment for a period of six weeks.
The request is rejected.
JUDGE khj ::: Downloaded on - 09/06/2013 18:28:45 :::