Karnataka High Court
M/S Jubilant Agri And Consumer Products ... vs Shivashakthi Builders And Developers on 10 January, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS 10TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.NO.58722/2016 (GM-CPC)
&
W.P.NO.1037/2017 (GM-CPC)
BETWEEN:
M/S JUBILANT AGRI AND CONSUMER
PRODUCTS LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
(JUBILANT RETAIL DIVISION)
HAVING ITS REGISTERED OFFICE AT
BHARTIAGRAM, GAJRAULA-244223
DISTRICT: AMROHA(UP)
HAVING ITS CORPORATE OFFICE AT:
SURVEY NO.12/5, 4TH FLOOR
KAIKONDARAHALLI
VARTHUR HOBLI, SARJAPUR ROAD,
BANGALORE 560 035
REPRESENTED BY CHANDVEER SINGH
... PETITIONER
(BY SRI PRAMOD NAIR, ADVOCATE)
2
AND:
1. SHIVASHAKTHI BUILDERS
AND DEVELOPERS,
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT
SHIVASHAKTHI, NO.255
KANAKAPURA MAIN ROAD
JAYANAGAR 7TH BLOCK,
BANGALORE - 560 070.
REPRESENTED BY ITS
MANAGING PARTNER
MR.B.VENKATESH.
2. MR. B.VENKATESH
S/O LATE K.BABU
AGED ABOUT 55 YEARS,
RESIDING AT SHIVASHAKTHI NILAYAM,
NO.1, 1ST CROSS
KATHRIGUPPA MAIN ROAD,
BSK III STAGE, BANGALORE - 560 085.
3. MR. B. SHAKTHIVEL
S/O LATE K.BABU
AGED ABOUT 47 YEARS,
RESIDING AT SHIVASHKTHI NILAYAM,
NO.1, 1ST CROSS
KATHRIGUPPA MAIN ROAD,
BSK III STAGE, BANGALROE - 560 085.
4. MR. B.J.SRIDHAR,
S/O LATE B.JAYARAM
AGED ABOUT 34 YEARS
RESIDING AT SHIVASHAKTHI NILAYAM,
NO.1, 1ST CROSS
3
KATHRIGUPPA MAIN ROAD,
BSK III STAGE
BANGALORE 560 085.
5. M/S ENPRO OIL PRIVATE LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT,1956
HAVING ITS REGISTERED OFFICE AT
NO.1517, 15TH FLOOR, DEVIKA TOWERS
NO.6, NEHRU PLACE, NEW DELHI - 110 019.
BY ITS MANAGING DIRECTOR.
6. M/S FOOD EXPRESS STORES,
HAVING ITS CORPORATE OFFICE AT
TOTAL MALL, 4TH FLOOR
KAIKONDARAHALLI,
VARTHUR HOBLI
SARJAPURA MAIN ROAD,
BANGALORE - 560 035.
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
7. M/S JUBILANT RETAIL,
A RETAIL DIVISION OF PETITIONER NO.3
HAVING ITS CORPORATE OFFICE AT
SURYODAI COMPLEX,
NO.7, NEW NO.143,
KODIHALLI OLD AIRPORT ROAD,
BANGALORE 560 008.
REPRESENTED BY ITS
MANAGING DIRECTOR.
... RESPONDENTS
4
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH AND SET ASIDE THE IMPUGNED ORDER DATED
17.09.2016 PASSED ON I.A.NO.8 IN O.S.NO.5561/2014
ON THE FILE OF THE CITY CIVIL AND SESSIONS JDUGE,
BANGALORE (CCH-18) PRODUCED AS ANNEXURE-A TO
THE INSTANT PETITON AND ETC.,
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING;
ORDER
The petitioner is defendant No.3 in O.S.No.5561/2014. That suit has been filed by the respondent - plaintiffs seeking recovery of a certain sum of money from the defendants. After the framing of issues, the suit was at the stage of recording of evidence of PW1. After completion of his examination
- in-chief, he was being cross-examined, at that stage, two applications were filed by the plaintiffs namely, IA Nos. 8 and 9. One application was for production of six documents, filed under Order VII 5 Rule 14 (3) of the Code of Civil Procedure, 1908, (CPC) and the other application was under Order XVIII Rule 17 of CPC. By the impugned order dated 17.09.2016, the said applications have been allowed. Being aggrieved, the defendant No.3 only has preferred these writ petitions.
2. I have heard learned counsel for the petitioner and perused the material on record.
3. Petitioner's counsel drew my attention to the recent judgment of the Hon'ble Supreme Court in the case of "Ram Rati Vs. Mange Ram and Others"
reported in AIR 2016 SC 1343. He contended that the power under Order XVIII Rule 17 read with Section 151 of CPC is an inherent power of the court which must be exercised sparingly. That the Hon'ble Supreme Court has cautioned the trial courts with 6 regard to exercise of discretionary power under Order XVIII Rule 17 of CPC. That in the instant case, the respondent - plaintiffs had initially produced certain documents. Subsequently they produced some more documents and after the completion of examination- in-chief of PW1, have sought to produce further documents in the suit. That the impugned order has disrupted the cross-examination of PW1 and therefore the said order may be quashed.
4. I have considered the submissions of the learned counsel for the petitioner in light of the material on record and also the judgment of the Hon'ble Supreme Court.
5. In the instant case, it is noted from the impugned order itself that the respondent - plaintiffs intended to produce six documents. Those documents 7 have been referred to in the impugned order. The trial court in its discretion has allowed the said documents to be produced belatedly and accordingly has allowed the application filed under Order VII Rule 14 (3) of the CPC. The production of the said documents is for the purpose of marking them as evidence. Therefore, the trial court allowed the other application filed by the respondent - plaintiffs recalling the PW1 and permitting him to be examined further for the purpose of marking the aforesaid six documents. The trial court has also noted that the suit was at the stage of cross-examination of PW1 and that the PW1 could be cross-examined further after the aforesaid documents are marked by way of examination-in-chief. No doubt, by the impugned order, the continuity in the cross-examination of PW1 is lost. But however, in the interest of justice, the 8 trial court in its discretion has allowed the said applications.
6. I do not see that a different view could have been taken in the matter. The petitioner herein as well as the other defendants would be entitled to cross-examine PW1 not only with regard to what he has already deposed but has also on the further examination-in-chief and the documents to be produced by way of further examination in-chief.
7. In the judgment of the Honb'le Supreme Court no doubt at paragraph No.11 it has been categorically stated that the discretionary power of the court has to be used sparingly and that the said power should not be used unnecessarily to protract the proceedings of the suit. But in the case before the Hon'ble supreme Court, the application was filed for 9 further oral evidence and no documents were sought to be produced. But in the instant case the trial court has in its discretion permitted belated production of six documents and therefore, in order to mark the said documents as evidence, permission to recall PW1 for the purpose of further reexamination - in chief has been granted.
I do not find any infirmity in the order of the trial court. There is no merit in the writ petitions. Writ petitions are dismissed.
Sd/-
JUDGE Bsv