Karnataka High Court
Sri B.P Virupakshamurthy vs Smt. Anitha on 14 March, 2018
Author: B M Shyam Prasad
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
W.P.NO.28749/2015 (GM-CPC)
BETWEEN
SRI B.P.VIRUPAKSHAMURTHY,
S/O LATE PUTTALINGACHAR,
SINCE DEAD BY LRS
1. CHUDAMANI V MURTHY,
W/O LATE B.P.VIRUPAKSHAMURTHY,
AGED ABOUT 65 YEARS,
2. SHASHIREKHA B.V
D/O LATE B.P.VIRUPAKSHAMURTHY,
W/O SATHYANARAYANA H.N
AGED ABOUT 42 YEARS,
3. B.V.LINGARAJU DODDAMANE
S/O LATE B.P.VIRUPAKSHAMURTHY,
AGED ABOUT 41 YEARS,
4. B.V.NAGABHUSHANA DODDAMANE,
S/O LATE B.P.VIRUPAKSHAMURTHY,
AGED ABOUT 39 YEARS,
ALL ARE RESIDENTS OF
VIRUPAKSHA TEMPLE ROAD,
BUKKAMBUDHI VILLAGE,
SHIVANI HOBLI,
TARIKERE TALUK,
2
CHIKKAMAGALURU
DISTRICT - 577 145. ...PETITIONERS
(BY SRI JAVAHAR BABU, ADVOCATE)
AND :
SMT.ANITHA
W/O S S ANILKUMAR
AGED ABOUT 41 YEARS,
R/O MIG-1, NO.4,
11TH MAIN, II STAGE,
GOGADI SOUTH,
(BHOGADI SOUTH)
MYSORE - 570 026.
REPRESENTED BY HER P.A HOLDER,
S.P.S.NARAYANA,
S/O LATE S.P.PARAMESHWARAIAH,
AGE : MAJOR,
R/O MIG-1, NO.4,
11TH MAIN, II STAGE,
GOGADI SOUTH,
(BHOGADI SOUTH)
MYSORE - 570 026. ... RESPONDENT
(BY SRI G.S.BHAT, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE COURT OF THE CIVIL JUDGE AND ADDITIONAL
JMFC, TARIKERE ON I.A.NO.8 DATED 29.06.2015 IN
O.S.NO.132/2009 AS PER ANNEXURE-E HERETO AND
CONSEQUENTLY DISMISS I.A.NO.8 AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 09.03.2018 AND COMING ON FOR
3
PRONOUNCEMENT OF ORDER, THIS DAY,
B.M. SHYAM PRASAD, J., MADE THE FOLLOWING
ORDER
This petition is filed impugning the order dated 29.06.2015, passed by the learned Trial Court Judge in O.S.No.132/2009 on the file of the Civil Judge and Additional JMFC, Tarikere, and by this order, the interim application, which is filed by the plaintiff under Order XXVI Rule 9 of the Code of Civil Procedure, 1909 (Hereinafter referred to as 'CPC', for brevity) for appointment of a Court Commissioner to visit the suit schedule property and to measure the same, is allowed.
2. The sole defendant, the original petitioner has impugned this order in this writ petition, but, after his demise on 31.5.2017, which is during the pendency of the above petition, his legal representatives have come on record and continued the proceedings.
3. The learned Counsel for the petitioner assailed the impugned order essentially on the ground that the present 4 application, viz., the application for appointment of Court Commissioner was filed when the suit was fully heard, reserved for judgment and later listed for clarification; and according to the learned Counsel for the petitioner, the learned Trial Court Judge, after having heard the suit and having reserved for pronouncement of judgment, could not have proceeded to receive the application as hearing at that stage was already concluded. The learned Counsel places reliance on a decision of the Honourable Supreme Court in Rasiklal Manikchand Dhariwal and another vs. M.S.S.Food Products1 in support of this contention.
4. On the other hand, the learned Counsel for the respondent/plaintiff refuted such argument placing reliance upon another decision of the Honourable Supreme Court in K.K.Velusamy vs. N.Palanisamy2 and contended that there is no statutory bar against receiving any application after the suit is heard and reserved for pronouncement of judgment, and 1 (2012)2 SCC 196 2 (2011)11 SCC 275 5 therefore, the learned Trial Court Judge could have received the subject application.
5. The learned Counsel for the petitioner, at the time of hearing, emphasized that he was urging only the aforementioned ground as against the impugned order and submitted that if this Court were to hold that the learned Trial Court Judge could indeed have received in law the application for appointment of Commissioner, he would not urge any other ground against the impugned order.
6. In these circumstances, the only question that arises for this Court's consideration is;
"Whether the Trial Court erred in receiving the application for appointment of Commissioner after the "hearing" was closed and matter was reserved for pronouncement of judgment, and later, listed for clarification?"6
7. The Honourable Supreme Court in K.K.Velusamy vs. N.Palanisamy3, while listing the circumstances under which the provisions of Section 151 CPC could be exercised, has enunciated that the restraint which the Courts practice in receiving the interlocutory applications after the arguments are concluded is a matter of convention and this convention cannot be applied as a straitjacket formula when exceptional or extra- ordinary circumstances justify the receipt and consideration of such application; and in those circumstances, the courts can receive such application to meet the ends of justice and to prevent the abuse of process of Court. Relevant paragraph reads as follows:-
"15. The learned counsel for the respondent contended that once arguments are commenced, there could be no reopening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is 3 (2011)11 SCC 275 7 reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under Section 151 of the Code."
8. The Honourable Supreme Court in the later decision in Rasiklal Manikchand Dhariwal and another vs. M.S.S.Food Products4, while considering the questions whether the judgment pronounced by one judge, after another judge had completed hearing, would be binding because the later judge had not heard the parties? and whether fixing the date for pronouncing the judgment under Order XXII Rule 1 of CPC could be said to be "adjourned for hearing of the suit ex parte" as contemplated under Order IX Rule 7 CPC, as canvassed by the defendant, 4 (2012)2 SCC 196 8 whose applications after the matter was reserved for pronouncement of judgment were rejected, has declared that once the suit is closed for pronouncement of judgment, there is no question of further proceedings in the suit, and that merely because the defendant continued to make applications after applications it cannot be concluded that the date fixed for pronouncement of judgment as provided under Order XX Rule 1 CPC could be construed as the date fixed for his appearance occurring in Order IX Rule 7 CPC.
9. In first of these judgments, the Honourable Supreme Court has declared that the restrictions practiced in receiving applications after the suit is reserved for pronouncement of judgment is a convention and such convention cannot be applied as a straitjacket formula, and that where facts and circumstances justify, the Courts can receive application even at that stage to meet the ends of justice and to prevent the abuse of process of Court; and in the second of these judgments, the Honourable Supreme Court considering the provisions of Order IX Rule 7 CPC, which enables a defendant to appear when 9 Court has adjourned the hearing of the suit ex parte, has concluded that this situation that is contemplated under Order IX Rule 7 CPC is different from the situation where the suit is closed for judgment after the conclusion of hearing, and declared that the defendant in that case could not have claimed that the Court had adjourned the hearing as contemplated under Order IX Rule 7 CPC.
10. In the present case before this court, it is nobody's ground that the learned Trial Court Judge had adjourned the suit ex parte when the subject application was filed by the plaintiff, and as such, the judgment of the Hon'ble Supreme Court in the case of Rasiklal Manikchand Dhariwal and another vs. M.S.S.Food Products is not applicable to the present case. However, the declaration of law by the Hon'ble Supreme Court in the case of K.K.Velusamy vs. N.Palanisamy would be more appropriately applicable as the subject application was filed by the plaintiff after both the parties were 'heard' fully and matter was reserved for pronouncement of judgment. 10
11. Hence, it is held that the Honourable Trial Court Judge could in law receive the application, I.A.No.8, filed by the plaintiff for appointment of Court Commissioner after hearing in the suit was closed and was reserved for pronouncement of judgment, and as such, there is no illegality or irregularity on that score in the impugned order. In view of the submissions of the learned Counsel for the petitioner that the petitioners impugn the order only on the question answered above, nothing further survives in this petition.
As such, the petition is dismissed.
Sd/-
JUDGE nv