Karnataka High Court
Sri.Ningaiah, vs Sri. Chandrodaya Vividodesha Trust on 5 November, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.2743 OF 2020 (GM-CPC)
BETWEEN:
SRI. NINGAIAH,
THE PRESIDENT,
KARNATAKA STATE TREASURY
EMPLOYEES HOUSE BUILDING
CO-OPERATIVE SOCIETY LTD.,
NO.361, 1ST CROSS, D.SUBBAIAH ROAD,
CHAMARAJA MOHALLA,
MYSORE-570024.
...PETITIONER
(BY SRI. B. SHARATH KUMAR, ADVOCATE)
AND:
1. SRI. CHANDRODAYA VIVIDODESHA TRUST,
REP. BY ITS PRESIDENT CHANDRU.B,
S/O BOREGOWDA,
AGED ABOUT 33 YEARS,
R/AT TELECOM EXTENSION, BHOGADI,
MYSORE-570024.
2. SRI. M.C.PONNAPPA,
AGED ABOUT 45 EYARS,
S/O M.KARIAPPA,
OFFICE NO.29, 3RD CROSS,
SARASWATHIPURAM, MYSORE,
R/AT PLOT NO.3C, SANKALPA SAFAR,
5TH CROSS, V.V.MOHALLA,
MYSORE-570002.
3. SRI. C.VENKATESH,
AGED ABOUT 44 YEARS,
S/O CHOWDAIAH,
2
D.NO.53, 3RD CROSS,
2ND MAIN, JAYANAGAR,
MYSORE-570014.
...RESPONDENTS
(BY SRI. R.S. RAVI, ADVOCATE FOR R1;
NOTICE TO R2 TO R3 ARE D/WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 10.01.2020 IN O.S.NO.240/2009
ON THE FILE OF THE COURT OF THE PRL. SENIOR CIVIL
JUDGE AND CJM AT MYSURU, ANNEXURE-A IN I.A.NO.LI
AND ALLOW THE APPLICATION FILED UNDER ORDER 16
RULE 1 AND 5 OF THE CODE OF CIVIL PROCEDURE.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY THROUGH VIDEO CONFERENCE, THE COURT MADE
THE FOLLOWING:
ORDER
Petitioner being the third defendant in a suit for Specific Performance in O.S.No.240/2009 is at the door steps of the Writ Court for laying a challenge to the order dated 10.01.2020, a copy whereof is at Annexure-A whereby the learned Principal Civil Judge (Sr. Dn), Mysore, having rejected his application in I.A.No.LI filed under Order 16 Rules 1& 5 of CPC, 1908, has refused to issue subpoena to his witness named in the list.
2. After service of notice, the contesting respondent having entered appearance through his learned counsel, resist the writ petition making submission in justification of 3 the impugned order and the reasons on which it is structured; notice to Respondent Nos.2 & 3 has been dispensed with.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants limited indulgence in the matter as under and for the following reasons:
(a) As already mentioned above, this suit of the year 2009 is for a decree of Specific Performance founded on a particular agreement dated 17.6.2008; petitioner is not a party to the said agreement; therefore, his contention that he wants to show the alleged fabrication & forgery of the subject document by banking upon a report of a private Hand Writing Expert, is difficult to countenance, especially when the said report is framed on the basis of comparison of a certified copy of the agreement in question with other documents;
ordinarily, for ascertaining and identifying authorship of a script, the original document has to be seen and not its certified copies or Photostat copies, as rightly contended by the learned counsel for the contesting respondent; thus, the report of the so called Hand Writing Expert now pales into insignificance apart from being irrelevant. 4
(b) The petitioner cannot bank upon the so called Hand Writing Expert is one thing and petitioner's right to lead evidence for establishing invalidity of the agreement in question is another; ordinarily, in suits relating to the claim for immovable properties, stakes are heavy and therefore, in the matter of leading evidence, the party should have a greater leverage, subject to all just exceptions into which argued case of the petitioner does not fit; therefore, the learned Judge of the court below ought to have permitted the petitioner to examine his witness; this having not been done, there is a legal infirmity in the impugned order and therefore, the same needs to be set right.
(c) Years have rolled since the institution of the suit, arguably lapse lying with both the sides if not with the trial Judge, as well, may be in varying degrees; heavens would not have fallen down had the petitioner been permitted to examine its witnesses for substantiating the stand it has taken in the suit; this apart, petitioner was not arrayed as a party initially and that it came to be impleaded long after the institution of the suit; in the guise of examining the witness, the suit proceedings cannot be protracted, indefinitely is also true.
5
In the above circumstances, this Writ Petition is allowed in part; a Writ of Certiorari issues quashing the impugned order to the extent mentioned herein before; the subject application having been favoured, the learned Judge of the court below is requested to permit the petitioner to examine the named witness and for that purpose, may issue subpoena, if need be.
The petitioner shall examine the witness on the very next date of hearing of the suit or within one adjournment on payment of costs as may be imposed by the court below; if the witness is accordingly not examined, the order now quashed shall stand resurrected, on its own as phoenix.
The learned Judge of the court below shall try & dispose off the suit preferably within an outer limit of six months and report compliance to the Registrar General of this Court.
Now, no costs.
Sd/-
JUDGE cbc