Karnataka High Court
C K Baljee vs Ms Veronica Margaret Fischer on 17 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION Nos.57328-329/2013 (GM-CPC)
BETWEEN:
C.K.Baljee,
S/o.Late Shri.Chander Baljee,
Aged about 62 years,
R/at.No.124, 3rd Main,
Defence Colony,
Indira Nagar,
Bangalore - 560 038. ...PETITIONER
(By Sri.Sriranga.S., Adv., for Just Law)
AND:
Ms.Veronica Margaret Fischer,
Also known as Vera Fischer,
D/o.Fredrick Thomas Binny,
Aged about 85 years,
R/at.No.81, Charles Street,
Apartment No.3, New York,
N.Y.10014-2641. U.S.A. ...RESPONDENT
(By Sri.B.K.Sampath Kumar, Adv.,)
******
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These petitions are filed under Articles 226 and 227 of
the Constitution of India praying to call for the records in
O.S.No.4615/1995 and to set aside the impugned order
dated 13.12.13 passed by the III Addl. City Civil Judge,
holding concurrent charge for the grant for the Court XXV
Addl. City Civil Judge, Bangalore vide Ann-K on IA No.14
and 15 u/o.XVIII Rule 17 and Sec.151 of the CPC and
dismiss the said applications.
These petitions coming on for Dictating Judgment this
day, the Court made the following:-
ORDER
In these writ petitions filed under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 13.12.2013, passed by the Trial Court in O.S.No.4615/1995 on I.A.Nos.14 and 15 vide Annexure-K.
2. By the impugned order at Annexure-K, the Trial Court has allowed I.A.Nos.14 and 15 to recall PW-1 and re- open the case.
3. Aggrieved by that, the petitioner has filed these writ petitions.
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4. Briefly stated the facts are:
The petitioner has filed suit in O.S.No.4615/1995 for specific performance of the sale agreement dated 21.6.1990. The parties have led their evidence. At the stage of arguments, the respondent has filed I.A.Nos.14, 15 and 16 to recall PW-1, re-open the case and to frame additional issue. The Trial Court by its order dated 13.12.2013 has allowed I.A.Nos.14 and 15 and rejected I.A.No.16. Aggrieved by the order passed on I.A.Nos.14 and 15, the petitioner has filed these writ petitions.
5. The respondent has filed statement of objections contending that the writ petitions are not maintainable. The writ petitions have been filed to get over the order for recalling of PW-1 which would establish that the suit is barred by limitation. The order passed by the Trial Court is legally valid and it does not call for interference. -4-
6. It is stated, the petitioner had not tendered for cross examination on 9.11.2009 to 23.1.2010, 21.4.2011 to 26.5.2011, 21.9.2012 to 12.6.2013. The respondent filed I.A.No.9 seeking to produce certain documents and it was allowed. The petitioner challenged the order and obtained stay. The respondent was not able to cross examine PW-1 as she needed the documents to proceed further. Thereafter, the petitioner produced one document before the Trial Court. The petitioner is avoiding to enter the witness box as he would be exposed.
7. It is stated, the respondent filed two applications I.A.Nos.10 and 11 to recall the order dated 28.6.2013 and recall PW-1 for further cross examination by re-opening the case. The applications were allowed on payment of cost of Rs.2,000/- vide order dated 3.8.2013. The matter was adjourned to 21.8.2013. PW-1 was not present on that day. Application was filed seeking adjournment. On 26.8.2013 the petitioner remained absent on the ground of -5- ill health. It is stated, the petitioner took several years to step into the witness box. The suit schedule property is only a portion of the larger property. The petitioner had fraudulently got the sale deed executed with respect to one of the portions and it was set aside. In respect of another portion, the suit came to be decreed after the death of the advocate and RFA No.27/2008 has been filed and the decree has been stayed. It is stated, the sale agreement is of the year 1990 and the petitioner had no financial capacity to purchase the suit schedule property.
8. It is stated, the petitioner challenged the orders passed on I.A.Nos.10 and 11 in W.P.Nos.38244 and 38568 of 2013. The writ petitions came to be disposed of with a direction to the Trial Court to dispose of the matter within three months. Thereafter, the petitioner took several adjournments to cross examine DW-1. The respondent filed I.A.Nos.14 and 15 as the petitioner had not produced the legal notice issued to him and the reply sent by his counsel -6- which were marked by the petitioner in O.S.No.2920/1994 as exhibits Ex.P.10 and P.11. The petitioner had admitted in his cross examination the receipt of the said notice. It is only to mark the notice and reply which have been produced by the petitioner himself in another suit. The petitioner wants to prevent the said documents being marked as the suit is barred by limitation. The decisions relied upon by the learned counsel for the petitioner have no bearing on the facts of the present case. Therefore, the respondent has prayed for dismissal of the writ petitions.
9. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the applications have been filed just to protract the proceedings. The petitioner was confronted with the notice in the year 2008 itself when PW-1 was cross examined. The certified copies of the documents were available with the respondent. In the affidavit filed by the respondent in August 2010 in support of I.A. for -7- amendment of the written statement, the respondent has stated that he was not in possession of the notice dated 29.6.92 at the time of filing the written statement. But, at the time of filing the application he was in possession of the certified copy of the same. Though the documents were available with the respondent throughout the trial, the respondent has not produced them either in the cross examination of PW-1 or in the evidence of P.A. holder of the respondent who has been examined on behalf of the respondent. He also submitted that I.A.No.11 was filed for amendment of the written statement based on the notice dated 29.6.92 and the application came to be rejected and it has become final. The respondent could have produces the documents when PW-1 was cross examined or when P.A. holder of the respondent was examined. At the stage of arguments when the argument has commenced I.A.Nos.14 and 15 have been filed. The Trial Court without considering the objections filed by the petitioner and the -8- decisions cited has passed the impugned order allowing the applications which is totally incorrect. The Trial Court has erred while allowing the applications. Therefore, the impugned order cannot be sustained in law. In Support of his submission, the learned counsel for the petitioner placed reliance on the decisions reported in (2011)11 SCC page 275 and 2013 AIR SCW page 1564.
10. As against this, the learned counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that PW-1 has admitted in his cross-examination about the notice dated 29.6.1992. Annexures-R1 and R2 are the notice and reply. They have been marked in evidence in O.S.No.2920/1994 filed by the petitioner himself. The delay is due to the conduct of the petitioner. The Trial Court has rightly allowed the applications and therefore, the impugned order does not call for interference. He also submitted that unless the order has resulted in grave injustice, it cannot be interfered -9- with under Articles 226 and 227 of the Constitution of India. In support of his submission, the learned counsel for the respondent placed reliance the decision of the Hon'ble Supreme Court reported in 2003(6) SCC page 675.
11. I have carefully considered the submissions made by the learned counsel for the parties.
12. The point that arises for my consideration is:
Whether the impugned order calls for interference?
13. It is relevant note, the suit is for specific performance of the sale agreement dated 21.6.1990. The parties have led their evidence. At the stage of arguments, the respondent has filed I.A.Nos.14 and 15 to recall PW-1 and re-open the case. The Trial Court has allowed the applications.
14. It is relevant to refer to the past events briefly in this case. PW-1 has been examined earlier in the year
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2008. His evidence has been concluded on 6.3.2008. The case has been adjourned to 31.3.2008 for respondent's evidence. At that stage, the counsel for the respondent has retired from the case. New counsel has entered appearance. Thereafter, the case has been adjourned from time to time. On 12.9.2008 I.As have been field to produce additional documents and to recall PW-1. I.As have been allowed on 2.11.2009. Thereafter, the case has been adjourned to 9.11.2009 for cross examination of PW-1. Again the matter has been adjourned from time to time till 15.3.2010. On 15.3.2010, the respondent has filed I.A. for amendment of the written statement. Thereafter, the application has been withdrawn on 30.8.2010. On the same day one more application has been filed for amendment of the written statement. The said I.A has been dismissed on 19.2.2011. The matter has been adjourned from time to time for cross examination of PW-1. On 7.6.2011, the respondent has filed I.A.No.8 calling upon the
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petitioner to produce some documents. On 9.11.2011 a memo has been filed to dismiss the application. Thereafter, one more application has been filed calling upon the petitioner to produce additional documents. The application has been allowed on 21.8.2012. The petitioner has produced additional documents on 5.12.2012 and thereafter has challenged the order insofar it relates to production of income tax returns and has obtained stay. On 28.6.2013, the request for adjournment has been rejected and cross examination of PW-1 has been taken as Nil. The case has been adjourned to 12.7.2013 for respondent's evidence. On 12.7.2013, the respondent has filed I.As to recall PW-1 for cross-examination by re-opening the case. The I.As have been allowed on 3.8.2013. It was challenged by the petitioner in W.P.No.38244/2013. The writ petition has been disposed of with a direction to the Trial Court to dispose of the matter within three months. Thereafter, PW-1 has been cross examined on 5.9.2013 and the
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evidence of P.A holder of the respondent has been recorded. The case has been adjourned for arguments. At the stage of arguments, the respondent has filed I.A.Nos.14 and 15 to recall PW-1 for further cross examination by re- opening the case. The Trial Court has allowed the applications.
15. It is evident from the material on record that PW-1 was cross examined on 6.3.2008. In his cross examination copy of the letter dated 29.6.1992 has been confronted. Thereafter, the respondent has filed application for amendment of the written statement based on the notice dated 29.6.1992. The said application has been rejected by order dated 19.2.2011. It has become final. In the affidavit filed in support of the application, for amendment, the respondent has stated that he is in possession of the certified copy of the notice dated 29.6.92. Thereafter, the petitioner has filed applications to recall PW- 1 by re-opening the case. The said applications have been
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allowed on 3.8.2013. It has been challenged in W.P.No.38244/13. This court has disposed of the matter with a direction to the trial Court to dispose of the matter within three months. Thereafter, PW-1 has been cross examined on 5.9.2013 and the respondent has adduced her evidence. At the stage of arguments, the respondent has filed I.A.Nos. 14 and 15 to recall P.W.1 for further cross- examination by re-opening the case. It is clear from the material on record, the respondent was in custody of the documents throughout the trial and had sufficient opportunity to produce the documents. In spite that, she has not produced the documents. Thereafter, at the stage of arguments, I.A.Nos.14 and 15 have been filed.
16. The Hon'ble Supreme Court in K.K.Velusamy Vs. N. Palanisamy reported in (2011)11 SCC 275 at para.20 has observed as follows:
"If the party had an opportunity to produce evidence earlier but did not do so or if the
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evidence already led is clear and unambiguous, or it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application."
17. Similarly in M/s Bagai Construction Vs. M/s Gupta Building Material Store the Hon'ble Supreme Court has observed at para.11 as follows:
" Though power u/s 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 re-opening 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."
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18. Similarly at para 12 the Hon'ble Supreme Court has observed thus:
"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 of CPC".
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19. No doubt, as contended by the learned counsel for the respondent, placing reliance on the decision of the Hon'ble Supreme Court reported in 2003(6) SCC page 675, unless injustice is caused, the power under Articles 226 and 227 of the Constitution of India cannot be exercised. In the present case, the fact situation is totally different. The decisions of the Hon'ble Supreme Court reported in (2011)11 SCC page 275 and 2013 AIR SCW 1568 are squarely applicable to the fact situation of the present case. The respondent was in custody of the documents throughout. There was no impediment to produce the documents. The Trial Court without considering the objections filed by the petitioner and without looking into the decisions cited by the petitioner has allowed the applications which is totally incorrect and cannot be sustained in law.
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20. Accordingly, the writ petitions are allowed and the impugned order passed by the Trial Court on I.A.Nos. 14 and 15 in O.S.No.4615/1995 is hereby set aside.
The trial Court shall dispose of the matter as already directed.
Sd/-
JUDGE Dvr.