Karnataka High Court
Sri Chikkarangaiah @ Puttaiah vs Smt Lakshmamma on 25 January, 2018
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.51138 OF 2017(GM-CPC)
AND
WRIT PETITION NO.3871 OF 2018(GM-CPC)
BETWEEN:
SRI CHIKKARANGAIAH @ PUTTAIAH
SON OF THEETEKEMPAIAH
AGED ABOUT 47 YEARS
RESIDING AT NAVILEHALLI
SATHYAMANGALA
TUMAKURU KASABA
TUMAKURU TALUK
TUMAKURU DISTRICT
PIN CODE 572 101 ... PETITIONER
(BY SRI N. SANDEEP FOR
SRI P.M.SIDDAMALLAPPA, ADV.)
AND:
SMT. LAKSHMAMMA
WIFE OF LATE NARASIMHAIAH
AGED ABOUT 37 YEARS
RESIDING AT NAVILEHALLI
SATHYAMANGALA,TUMAKURU KASABA
TUMAKURU TALUK, TUMAKURU DISTRICT
PIN CODE 572 101 ... RESPONDENT
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THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO CALL FOR RECORDS IN O.S. NO.333/2000
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE AND
JMFC TUMKUR, SET ASIDE THE ORDER DTD. 12.10.2017
PASSED BY THE LEARNED II ADDL. CIVIL JUDGE AND
JMFC, TUMKURU ON I.As. FILED UNDER SECTION 151 AND
UNDER ORDER 18,RULE 17 OF C.P.C. IN O.S.NO.333/2000
AS PER ANNEXURE-G ETC.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Plaintiff has filed the present writ petitions against the Order dated 12.10.2017 passed by the II Addl. Civil Judge and JMFC, Tumkur, rejecting the interlocutory applications filed under Section 151 of Civil Procedure Code and Order XVIII Rule 17 of Civil Procedure Code, seeking to recall and re-open the case, in O.S. No.333/2000, with cost of Rs.1,000/-.
2. The petitioner herein is the plaintiff in the Trial Court, filed suit for declaration of title in respect of 'B' schedule property being a part of 'A' schedule property and 3 seeking mandatory injunction directing the defendant to demolish the construction put up on 'B' schedule property at her cost or in the alternative to permit the plaintiff to demolish the said construction by recovering cost from the defendant and for recovery of possession of the 'B' schedule property. Plaintiff has also sought for mesne profits and perpetual injunction against the defendant or any persons acting on her behalf.
3. It is the case of the petitioner that he is the absolute owner and in possession and enjoyment of the suit schedule property and the defendant has no manner of right, title or interest over the schedule property. The defendant has been interfering with the plaintiff's peaceful possession and enjoyment of the property. She is attempting to encroach upon the vacant place in the schedule property by putting up construction thereof. It is the further contention of the petitioner that Khaneshumari No.712/15 was purchased by the father of the petitioner Teetekempaiah from one Manappa, Son of Doddaiah. The 4 husband of the defendant clandestinely got changed its katha into his name and then the defendant got changed it into her name after the death of her husband during the pendency of the suit and when injunction order was in force. Under the guise of obtaining licence, she has encroached upon East to West 40 ft. North to South 13 ft. on the North-East corner of the schedule property and put up construction by keeping vacant space to the east of Khaneshumari No.712/15 measuring 20 ft x 15 ft only. Abutting to the Khaneshumari No.712/15, there was house property of the father of plaintiff and Khaneshumari Nos.106, 713/13 are yet to be divided. Accordingly, the petitioner has filed the suit for the reliefs as aforesaid.
4. The defendant filed written statement denying the plaint averments and contended that in fact, there existed defendant's house to the east of the plaintiff's house and the same is also admitted in the palupatti entered between the plaintiff and his brothers inter-se, and also the same was accepted in the mutation. Yet the 5 plaintiff has given wrong schedule just to grab the property of the defendant. The suit filed by the plaintiff is futile and defendant never interfered with the property of the plaintiff as alleged and the suit is liable to be dismissed.
5. When the matter was posted for cross-
examination of DW-1, though the Trial Court granted adjournment on three to four occasions, still the plaintiff has not proceeded to cross-examine DW-1. Therefore the cross-examination of DW-1 was taken as nil and the matter was posted for arguments. At that stage, the plaintiff filed two interlocutory applications, one under Section 151 of Civil Procedure Code to re-open the case and another under Order XVIII Rule 17 of Civil Procedure Code to recall PW-1 for further chief examination. The said applications were opposed by the defendant by filing objections. The Trial Court, by considering the applications and objections, by the impugned order dated 12.10.2017, rejected both the applications with cost. Hence, the present writ petitions are filed.
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6. I have heard the learned counsel for the petitioner.
7. Sri Sandeep N. appearing on behalf of Sri P.M.Siddamallappa, learned counsel on record for the petitioner, vehemently contended that the impugned order passed by the Trial Court rejecting the applications filed by the plaintiff for recalling PW-1 and for re-opening of the case is contrary to the material on record. It was further contended that the impugned order passed by the Trial Court rejecting the applications by levying cost is nothing but depriving the plaintiff of cross-examining DW-1. The application has not been accepted by the Trial Court only on the ground that the suit was pending for more than ten years. The reasoning arrived by the Trial Court amounts to miscarriage of justice. He further submitted that having regard to the fact that the plaintiff's counsel was engaged in another Court at Kunigal, the Trial Court ought to have allowed the applications. Therefore, learned counsel sought to quash the impugned order by allowing the writ petitions. 7
8. Having heard the learned counsel for the petitioner, it is noted that the very petitioner filed the suit for declaration of title in respect of B schedule property which is part of A schedule property and to demolish the construction put on B schedule property on the ground that the defendant illegally encroached the vacant portion of B schedule property. The same was denied by the defendant by filing written statement and contending that the suit is filed by the plaintiff with ulterior motive. Hence, he sought for dismissal of the suit.
9. It is also not in dispute that the suit was filed in the year 2000. Though several adjournments were granted, the plaintiff having not cross-examined DW-1, same was taken as nil on 20.11.2015. The plaintiff having filed application to recall DW-1 for cross-examination, same was allowed on 25.11.2015. On 03.12.2015, DW-1 was cross-examined in part by the plaintiff. Thereafter, again several adjournments were granted on 09.12.2015, 14.12.2015, 18.12.2015, 02.01.2016 till 23.01.2016. 8 Plaintiff has filed similar applications several times to re- open and further cross examine DW-1 which were allowed by the Trial Court.
10. Further, the Trial Court in the impugned order has observed that though several opportunities were granted to the plaintiff to cross-examine DW-1, plaintiff failed to cross-examine DW-1. Though both counsel submitted on 03.10.2017 that the case may be posted for arguments on merits, again on 06.10.2017, the plaintiff has filed the present applications. The Trial Court rejected the applications on the ground that in spite of granting sufficient time, plaintiff has not utilized the same and posted the matter for arguments.
11. The material on record would clearly indicate that suit was filed in the year 2000 for declaration of title and mandatory injunction. From 2015 till 2017 several opportunities were given to the plaintiff to cross-examine DW-1. In spite of granting time, allowing the applications 9 repeatedly, though amounts to res judicata, still the Trial Court allowed the applications and yet the plaintiff did not complete cross-examination of DW-1. The Trial Court, considering the entire material on record, by the impugned order has observed as under:
"Heard both the counsel, perused the material on record, as per the order sheet defendant was examined as DW-1 on 24/8/15 and got marked exhibits, thereafter the case has posted for cross of DW-1. Case was adjourned for several dates, but the plaintiff not cross examined, hence cross of DW-1 taken as nil on 20/11/15 and on 25/11/15 the plaintiff filed similar application praying to recall DW-1 for cross examination which was allowed and on 3/12/15. DW-1 was partly cross examined. Thereafter again the case was adjourned for several dates of hearing i.e., 9/12/15, 14/12/15, 18/12/15, 2/1/16, 4/1/16, 7/1/16, 14/1/16, 23/1/16, again meanwhile plaintiff filed application under section - 151 CPC prays for reopen and recall case for further chief of PW-1, same is allowed. After again the plaintiff has filed applications which are disposed of and on 15/07/17 the case is posted for further cross of DW-1. Plaintiff prays time hence adjourned on from 21.7.17 to 10 27.7.17. Again the plaintiff filed recall and reopens the case for further chief of PW-1 which is allowed by this court on 01.08.2017. Thereafter PW-1 further examined and cross examined and again the case is posted to its original stage i.e., for further cross of DW-1 on 07.09.2017 again it is adjourned 16.09.2017, 21.09.2017, on which dates the further cross of DW-1 taken as nil and defendant side evidence is closed and posted for arguments on merits. Now at this stage the plaintiff has again come up with this application. The order sheet itself discloses that since 2000, the parties are protracting the matter by filing applications after applications only with intent to drag on the proceedings, the pendency of the suit for more than 10 years itself shows the intention of the parties to the suit. Moreover on 03.10.2017 both parties submitted case maybe posted for arguments on merits and now the plaintiff even after providing him sufficient opportunity not further cross examined DW-1 and is in habit of filing application after application either recalling PW-1 for further chief or recalling for further cross of DW-1 and moreover the ground stated by the plaintiff that his counsel was engaged in another court at Kunigal is not a sufficient ground to recall and reopen the case for further cross of DW-1. Moreover, this is not the first time that the Plaintiff not cross examined DW-1, 11 but earlier also on several occasions the plaintiff failed to cross examined DW-1 in spite of the fact that the court has given sufficient opportunity. Therefore as it was held in ILR 2016 KAR 3341 (supreme court) the more period of pendency the more number of applications-courts showing misplaced sympathy and indulgence in extending the interlocutory application for adjournments recall and reopen of the case- Adamant attitude and protracting tactics of the parties to the suit. Held it is an insult to justice and to the concept of speedy justice- and amount to abuse of process of law. The above decision of law is aptly applicable to the case on hand. Pendency of the present suit for more than 10 years itself evident of the attitude of the plaintiff. Therefore I am of the opinion that the plaintiff has not made out any sufficient grounds to recall and reopen the case and further such an attitude of the plaintiff shall be discouraged, curtailed by imposing appropriate cost. Accordingly I proceeded to pass the following:
ORDER I.A's under Section -151 CPC and I.A under Order-18, Rule-17 CPC filed by the Plaintiff is hereby rejected with costs Rs.1,000/- payable to Defendants. Subject 12 to payment of cost the plaintiff is permitted to adduce his argument."
12. Though the Trial Court on four or five occasions granted opportunity to cross examine DW-1 without imposing any costs, taking advantage of the leniency of the Court, the plaintiff / petitioner has continued the habit of filing application after application and he was adamant not to cross examine DW-1. Plaintiff/ petitioner has not exhibited any concern for court proceedings and several applications were filed. The approach of the plaintiff is wholly condemnable. The acts of the plaintiff are against majesty of law. The plaintiff has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation.
13. The Hon'ble Supreme Court while considering the provisions of Order 17 Rule 1 and Order 18 Rule 17 in the case of Gayathri Vs. M. Girish reported in (2016(14) Supreme Court Cases 142) at para 7 to 11 held as under:
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"7. In K.K. Velusamy ((2011) 11 SCC 275), while dealing with the power of the Court under Order 18 Rule 17, this Court held that: (SCC PP.281-82, paras 9-10)
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].
10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is 14 primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions." (emphasis in original) And again: (SCC pp.285-86, paras 19 & 21)
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 bona fide 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 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. Thirdly, if the application is found to be mischievous, or 15 frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
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21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.
We have referred to the said paragraphs to show the purpose of filing an application under Order XVIII Rule 17 of the Code. We may add that though in the said decision this Court allowed the appeals in part, the fact situation, the conduct of the party and the grievance agitated were different. The Court also thought it apposite to add a word of caution and also laid down that if the application is mischievous or frivolous, it is desirable to reject the application with costs.
8. In this context, we may fruitfully refer to Bagai Construction v. Gupta Building Material Store, (2013) 14 SCC 1. In the said case the Court had 16 expressed its concern about the order passed by the High Court whereby it had allowed the application preferred under Order 18 Rule 17 that was rejected by the trial court on the ground that there was no acceptable reason to entertain the prayer. Be it stated, this Court set aside the order passed by the High Court. In the said case, it has also been held that it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. That apart, it has also been held that the Courts should constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated. Painfully, the Court observed: (SCC p.7,para 15) "15.... In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive 17 possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC."
9. In the case at hand, as we have stated hereinbefore, the examination-in-chief continued for long and the matter was adjourned seven times. The defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial Court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the defendant-petitioner shown towards the proceedings of the Court is absolutely manifest. The disregard shown to the plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command. Applications are not to be filed on the grounds which we have referred to hereinabove and 18 that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law.
10. In this context, we may profitable reproduce a passage from Shiv Cotex v. Tirgun Auto Plast (P) Ltd.,(2011) 9 SCC 678, wherein it has been stated that (SCC p.682,para 15) "15. it is sad, but true, that the litigants seek- and the courts grant-adjournments at the drop of a hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation."
The court has further laid down that: (SCC p.682, para 15) "15.... It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further."
11. In Noor Mohammed v. Jethanand,(2013) 5 SCC 202 commenting on the delay caused due to dilatory tactics adopted by the parties, the Court was compelled to say: (SCC p.215,para 28- 19
"28. In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach."
And, again: SCC p.216, para 31) "31. Thus, from the aforesaid, it is clear as day that everyone involved in the system of dispensation 20 of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be Herculean, the same has to be performed with solemnity, for faith is the "elan vital" of our system."
14. In view of the aforesaid reasons, the petitioner or his counsel has not shown any institutional responsibility. Therefore, the Trial Court is justified in rejecting the application. The same is in accordance with law. The petitioner has not made out any grounds to interfere in the order passed by the Trial Court exercising power under Article 227 of the Constitution of India. Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE sac* / tsn