Karnataka High Court
Jaladigere Sri Chikkamma And vs Sri J K Shivanna on 14 February, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.17945 OF 2021 (GM -CPC)
BETWEEN:
JALADIGERE SRI CHIKKAMMA AND
DODDAMMA TEMPLE TRUST
JALADIGERE VILLAGE
YEDIUR HOBLI
KUNIIGAL TALUK
TUMKUR DISTRICT
REPRESENTED BY
1. SRI K KRISHNAPPA
SECRETARY
JALADIGERE SRI CHIKKAMMA AND
DODDAMMA TEMPLE TRUST
S/O LATE KARITHIMMAIAH
AGED 61 YEARS
2. SRI PUTTASWAMY
JOINT SECRETARY
JALADIGERE SRI CHIKKAMMA AND
DODDAMMA TEMPLE TRUST
S/O THAMMAIAH @ THIMMAIAH
AGED 78 YEARS
BOTH ARE RESIDENTS OF
JALADIGERE VILLAGE
YEDIUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT - 572 130
... PETITIONERS
(BY SRI. B.N. SHIVANNA, ADVOCATE)
W.P.No.17945/2021
2
AND:
1. SRI J K SHIVANNA
S/O KARIGOWDA
AGED ABOUT 68 YEARS
JALADIGERE VILLAGE
YEDIUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT -572130
2. SRI B NARAYANASWAMY
S/O BYATAIAH
AGED 69 YEARS,
RESIDING T GURUKRUPA
NO.346, 11TH MAIN
SRINIVASANAGAR
BANGALORE-560050
3. SRI LAKSHMIKANTHA
S/O DASEGOWDA, MAJOR
4. G V KRISHNAMURTHY
S/O VENKATAIAH
AGED 59 YEARS
5. G SRINIVASA
S/O GOVINDAIAH
AGED ABOUT 59 YEARS
RESPONDENT NOS.3 TO 5 ARE
RESIDENTS OF
JALADIGERE VILLAGE
YEDIUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572130
6. SYNDICATE BANK
NAGASANDRA
YEDIUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572130
REP. BY ITS BRANCH MANAGER
W.P.No.17945/2021
3
7. STATE BANK OF MYSURU
YEDIUR BRANCH
NO.6, SIDDALINGESHWARA NAGAR
KUNIGAL TALUK
TUMKUR DISTRICT-572130
REP BY ITS BRANCH MANAGER
... RESPONDENTS
(BY SRI MANJUNATH NAIK, ADVOCATE FOR R1 TO R3 AND R5;
SRI. SACHIN B.S., ADVOCATE FOR R4;
R7 AND R8 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE LEARNED CIVIL JUDGE SENIOR
DIVISION COURT AT KUNIGAL DTD. 16.04.2021 IN
O.S.NO.11/2012 MARKED AT ANNX-A AND ALLOW THE I.A.
NO.57/2021 AND I.A.NO.58/2021 TO PERMIT THE PLAINTIFF
/ PETITIONER TO CROSS-EXAMINE THE DEFENDANT / R-6
AND 7.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners before this Court seeking for the following reliefs :
"i) Issue writ of certiorari to quash the order passed by the learned Civil Judge Senior Division Court at Kunigal dated 16.04.2021 in O.S.No.11/2012 marked at Annexure-'A' and allow the I.A.No.57/2021 and I.A.No.58/2021 to permit the plaintiff/petitioner to cross-examine the defendant/respondent Nos.6 and 7;
ii) Grant such other relief/s as this Hon'ble Court deems fit to grant in the circumstances of the case in the interest of justice and equity."W.P.No.17945/2021 4
2. The suit in O.S.No.11/2012 had been filed seeking for the following reliefs:
"a) Restraining the defendant No.1 to 5 from operating the bank account of the plaintiff trust in defendant No.6 (Account No.20042200044190) and defendant No.7 bank (Account No.54033290097).
ai) To declare that the resolution passed by the defendants No.1 to 4 from 11.06.2011 to 04.10.2015 and any acts and deeds committed pursuant to the forgery of the signatures of the plaintiffs No.1 to 3 is null and void and not binding on these plaintiffs.
aii) Issue permanent injunction restraining defendant No.1 to 4 not to interfere with the peaceful possession and enjoyment of the schedule property of the plaintiffs.
aiii) Issue permanent prohibitory injunction restraining the defendants or anybody acting on behalf of defendants or legal heirs or legal representatives not to interfere with performing or poojas permanently in the plaintiff No.1 temple, in the interest of justice and equity.
b) Restraining the defendant No.6 and 7 bank from allowing defendant No.1 to 5 to operate the bank account of the plaintiff trust.
c) For Rs.8,00,000/- (Eight Lakhs Only) so far drawn by defendant No.1, 2, 4 and 5.
d) Grant such other and further reliefs that this Hon'ble Court deems fit in the circumstances of the case in the interest of justice and equity."
3. In the said suit, defendant Nos.6 and 7, who are the banks, though entered appearance through W.P.No.17945/2021 5 counsel, did not lead any evidence and had indicated that they have no evidence in the matter.
4. Since there were certain reliefs that were sought for as regards the banks and or the operation of the bank accounts, an application in I.A.No.57/2021 was filed seeking for re-opening of the case and I.A.No.58/2021 was filed to summon the managers of defendant Nos.6 and 7, to be cross-examined by the petitioners who were the plaintiffs in the said suit as also for production of certain documents.
5. The said applications came to be dismissed by the trial Court on the ground that the burden of proof proving the allegation of the plaint is that of the plaintiffs and defendant Nos.6 and 7 cannot be compelled to lead evidence. More so, when the plaintiffs have not filed any application to lead the evidence of defendant Nos.6 and 7 as the further evidence of the plaintiffs., it is aggrieved by the same that the petitioners are before this Court. W.P.No.17945/2021 6
6. Sri.B.N.Shivanna, learned counsel for the petitioners would submit that in the plaint filed various allegations which have been made against defendant Nos.6 and 7, the operations of the bank accounts in defendant Nos.6 and 7 by defendant Nos.1 to 5, the fraudulent withdrawal of money from the said bank accounts as also as regards criminal proceedings which had also been filed. He submits that one of the issues which has been framed is as to whether the plaintiffs prove that the defendants have no authority to operate any of the bank accounts and another issue is relating to the illegal drawing of Rs.8 Lakhs by defendant No.4 can return to defendant Nos.6 and 7.
7. In such a situation, he submits that the Court ought to have issued summons to defendant Nos.6 and 7 to produce the documents as also to lead the evidence and the choice of producing the documents or to lead the evidence ought to have W.P.No.17945/2021 7 been left to defendant Nos.6 and 7. The trial Court ought not to have foreclosed this matter by holding that there could be no compellation on defendant Nos.6 and 7 from leading evidence. In this regard, he has relied upon a decision of this Court in the case of M.C. ANANDA AND ANOTHER VS M.C.CHIKKANNA AND ANOTHER reported in 2001(4) KarLJ 203, more particularly paragraph No.8, which reproduced hereunder for ready reference:
"8. So, no doubt, this rule indicates that a party to the suit may be required and a party may be entitled to require any other party to the suit to give evidence, or to produce the documents and the Court below appears to have proceeded on mistaken notion that a party to the suit is not entitled subject to the power and permission of the Court to summon or to examine the opposite party. The expression 'any other party thereto' is indicative of the party to the suit or to say party other than summoning the party which may include the opposite party. In other words, the plaintiff may summon the defendant as a witness and require him, to produce the documents. Similarly, the defendant may summon the plaintiff, as held by this Court in Syed Yasin's case, supra, but it is open to the Court, if in its opinion, summoning of the other party or opponent is likely to result in the abuse of the process of the Court, it may refuse as well. It is also no doubt true that ordinarily the practice of calling the opposite party has been held and considered to be unhealthy practice, as held by their Lordships of the Privy Council in Mahant W.P.No.17945/2021 8 Shatrugan Das, case, supra and by the Division Bench of this Court in Mallangowda's case, supra. The Division Bench in paragraph 7 of the said report observed as under:
"We have in unmistakable terms stated in this Court previously that this practice of calling the opposite party as a witness on his side should not be countenanced as it is not in the interests of justice"."
8. On the basis of the above, he submits that the writ petition is required to be allowed and I.A.Nos.57 and 58 of 2021 are required to be allowed. The stage of the case be reopened and the bank managers of defendant Nos.6 and 7 summoned.
9. Though defendant Nos.6 and 7 have been served, they have not entered appearance.
10. Sri. Sachin B.S., learned counsel for respondent No.4 though initially sought to object by contending that the no such application could be filed by the Plaintiff and that the applications had been filed to protract the proceedings however on being pointed out that there being no prayer against respondent No.4, he submitted that he has no objection for W.P.No.17945/2021 9 allowing the writ petition, however requested that the trial Court be directed to expeditiously dispose off the matter in O.S.No.11/2012, which is pending for a long time.
11. Sri.Manjuntha Naik, learned counsel for respondent Nos.1 to 3 and 5, has adopted the submissions of learned counsel for respondent No.4.
12. Heard Sri.B.N.Shivanna learned Counsel for the Petitioner, Sri. Sachin B.S., learned counsel for respondent No.4. Sri.Manjuntha Naik, learned counsel for respondents Nos.1 to 3 and 5
13. The short question that would arise for determination by this Court is Whether a plaintiff can compel the defendants to lead their evidence in a matter or vice versa?
14. This is a peculiar case where the contesting parties are the plaintiffs and defendant Nos.1 to 5. Defendant Nos.6 and 7 are the banks who cannot W.P.No.17945/2021 10 be said to be contesting parties but are independent authorities or entities with whom the bank accounts of the temple are maintained. Thus in essence, the applications which have been filed by the plaintiffs is seeking for defendant Nos.6 and 7 to produce certain documents and to lead their evidence is not against the contesting parties but is against the independent third party who cannot be said to have any interest as such in the matter. It is the duty of the independent third party in any suit or litigation to place the true facts and records for the Court to decide the matter in accordance with law.
15. In the present case, there is one more shocking fact inasmuch as defendant Nos.3 and 5 to 8 are represented by the very same counsel in the trial Court. This Court fails to understand how the banks could be represented by the same counsel who is appearing for the contesting respondents and that counsel makes a submission that the bank does not W.P.No.17945/2021 11 have any evidence to lead and it is that counsel who opposed the application filed by the plaintiffs. In my considered opinion there is a serious conflict of interest in the counsel appearing for the contesting defendants as also independent third party-bank banks. The trial Court is directed to look into the same and take necessary action.
16. These facts when taken together would indicate that respondent Nos.6 and 7 who are in custody of the bank records, resolutions, the cheque etc. have chosen not to place the same before the Court for effective adjudication of the dispute. As observed, I am of the considered opinion that respondent Nos.6 and 7 are not the contesting defendants but are the independent third parties and therefore, on that ground, the plaintiffs could have always sought for summoning them as witnesses as also the production of documents in their custody so as to enable the trial Court to effectively adjudicate the W.P.No.17945/2021 12 dispute between the parties, this being so even if they were not parties to the suit.
17. The trial Court ought to have issued the summons to defendant Nos.6 and 7 so as to make available the option of inference of adverse inference in the event of respondent Nos.6 and 7 not appearing and leading their evidence and/or not producing the documents. Admittedly, the bank accounts are maintained with respondent Nos.6 and 7. Admittedly, all the documents are in the custody of respondent Nos.6 and 7. Therefore, it was for the respondent Nos.6 and 7 to have placed the true facts on record before the trial Court and not take sides in a judicial proceedings.
18. Accordingly, I pass the following:
ORDER
i) The writ petition is allowed.
ii) A certiorari is issued, the order dated 16.04.2021 passed by the Civil Judge W.P.No.17945/2021 13 (Sr.Dn.), Kunigal in O.S.No.11/2012 on I.A.Nos.57 and 58 of 2021 is hereby quashed. Consequently, I.A.Nos.57 and 58 of 2021 are allowed.
(iii) The stage of the case from arguments is re-opened and notice is issued to defendant Nos.6 and 7 in the said proceedings to produce the documents sought for by the plaintiff and to lead their evidence in the matter.
(iv) In the event of respondent Nos.6 and 7 not producing the documents and/or not leading evidence, the trial Court would be free to draw adverse inference, if so called for.
(v) Considering the suit is of the year 2012, the trial Court is directed to dispose of the said suit as expeditiously as possible. The submission of Sri.B.N.Shivanna, learned counsel for the petitioners that he would W.P.No.17945/2021 14 not take any unnecessary adjournments and not file any unnecessary applications as also the submissions of Sri.Sachin B.S., learned counsel for respondent No.4 and Sri.Manjunath Naik, learned counsel for respondent Nos.1 to 3 and 5 that they also would not take any unnecessary adjournments and they would assist the Court in expeditious disposal of the matter, is placed on record.
(vi) All pending applications stand disposed off.
(vii) Interim order stands discharged.
Sd/-
JUDGE NR/-