Karnataka High Court
M/S Rajgopal And Co., vs K N Narasimha Murthy Since Dead By His Lrs on 3 April, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 3RD DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION NOS.50852-50854/2012 (GM-CPC)
BETWEEN
M/S RAJGOPAL & CO.,
NO.80, ARUNA MARKET
C T STREET, BANGALORE-560 002
BY ITS PROPRIETOR
SRI V R NAGENDRA GUPTA
S/O LATE V RAJAGOPAL
AGED ABOUT 55 YEARS ... PETITIONER
(BY SRI VASANTH V NAIK, ADV.)
AND
1. K N NARASIMHA MURTHY
SINCE DEAD BY HIS LRS
SRI K N PRAHALAD
S/O LATE K N NARASIMHAMURTHY
AGED ABOUT 65 YEARS
RESIDING AT NO.3323,
4TH CROSS, 2ND STAGE
RPC LAYOUT, VIJAYANAGAR
BANGALORE-560 040
2. SMT SUDHA B RAO
W/O SRI BALAJI RAO
D/O LATE K N NARASIMHAMURTHY
AGED ABOUT 63 YEARS
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RESIDING AT NO.3323
4TH CROSS, 2ND STAGE
RPC LAYOUT, VIJAYANGAR
BANGALORE-560 040
3. SMT K N PRAMILA
D/O LATE K N NARASIMHAMURTHY
AGED ABOUT 61 YEARS
RESIDING AT NO.3323
4TH CROSS, 2ND STAGE
RPC LAYOUT, VIJAYANGAR
BANGALORE-560 040
4. SRI GURURAJACHAR
S/O LATE K N NARASIMHAMURTHY
AGED ABOUT 63 YEARS
RESIDING AT NO.3323
4TH CROSS, 2ND STAGE
RPC LAYOUT, VIJAYANGAR
BANGALORE-560 040 ... RESPONDENTS
(BY SRI M S RAGHAVENDRA PRASAD, ADV.)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA PRAYING TO QUASH THE ORDER DATED
30.10.12 PASSED ON IA NO.18 IA NO.19 AND IA NO.
20 IN OS 6050/05 BY THE ADDL. CITY CIVIL JUDGE
BANGALORE CITY. ALLOW THE APPLN AND PERMIT
THE PETITIONER TO LEAD FURTHER EVIDENCE ON
THE SAID DOCUMENTS.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN B-GROUP THIS DAY, THE
COURT PASSED THE FOLLOWING:
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ORDER
Petitioner is the plaintiff and the respondents are the defendants in OS No.6050/2005 on the file of the City Civil Court, Bangalore. Suit was filed on 10.8.2005 to direct the defendants to perform an agreement of sale dated 12.3.2003 and for grant of consequential reliefs. Suit having been contested by filing written statement, issues were raised and trial has taken place. When the suit was at the stage of final arguments, plaintiff filed IA Nos. 18 to 20 to re-open the case, to recall PW-1 for further examination in chief and for production of additional documents. The legal representatives of the defendants having opposed the applications, the trial court upon consideration of the record, finding no justification to grant reliefs prayed in the said applications, passed an order of dismissal dated 30.10.2012. Assailing the said order, these writ petitions have been filed.
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2. Sri Vasanth V. Naik, learned counsel for the petitioner contended that the documents sought to be produced being relevant and important to prove the case of the plaintiff, the trial court is not justified in passing the impugned orders. Learned counsel further submitted that there is a mis-direction and an irrational act on the part of the learned trial judge and hence, interference in the matter is warranted.
3. Sri M.S. Raghavendra Prasad, learned counsel for the respondents, on the other hand supported the view taken by the trial court to dismiss IA Nos.18 to 20 vide order dated 30.10.12.
4. The suit was instituted on 10.8.2005. Trial of the suit is complete and when it was at the stage of arguments, IA Nos.18 to 20 were filed. Aggrieved by the order of dismissal of those applications on 30.10.2012, these writ petitions were filed on 14.12.2012 with defects and were listed on 5.3.2013. A peremptory order was passed to remove the office objections. By an 5 order dated 27.03.2013, notice to the respondents was ordered.
5. It is clear from the record that the plaintiff has not been prosecuting the suit diligently. After the trial is complete, the applications were filed. The affidavits filed in support of the applications are bald and do not make out any case for grant of the reliefs. Merely because DW1 did not admit the documents when confronted, cannot lead to a situation of the plaintiff/PW1 being recalled for the purpose of marking the documents. There was a need for the plaintiff to have produced the documents along with the plaint. Even during the course of the trial of the plaintiff, the documents have been produced. In the circumstances, the ratio of decision in the case of M/s. Bagai Construction Thr. its Proprietor Lalit Bagai Vs. M/s. Gupta Building Material Store, reported in 2013 AIR SCW 1564 squarely applies. In the said decision, it has been held as follows:
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"9. If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order XVIII, Rule 17, the applications filed by the plaintiff have to be rejected. However, learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 : (2011 AIR SCW 2296), submitted that with the aid of Section 151, CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW-1 to prove those documents and if need arises other side may be compensated. According to him, since the High Court has adopted the said course, there is no need to interfere with the same.
xxx xxx xxx
11. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage" occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted.
12. After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a 7 reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. 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 possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on 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."
6. In view of the above, the view taken by the trial court to pass the impugned order cannot be termed as irrational and no interference in the matter is warranted.
Consequently, Writ Petitions fail and shall stand dismissed. However, the trial court shall decide the suit in accordance with law and un-influenced by the view taken on IA Nos.18 to 20. The amount in deposit be refunded to the petitioners.
Sd/-
JUDGE PL