Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1313 (KAR)

Savithramma v. Nagarathna

2020-07-03

JYOTI MULIMANI

body2020
JUDGMENT Jyoti Mulimani, J. - Petitioner has filed the present writ Petition invoking the writ jurisdiction of this Court assailing the order dated 21.9.2019 passed by the XXXVIII Additional City Civil Judge and Senior Division, Bengaluru on I.A.Nos.18 and 19 in O.S.No.7109/2008. A copy whereof is at Annexure 'F', whereby the applications filed by plaintiff to recall the order of closing evidence of PW-1 and permit him to lead further examination in chief, and for production of documents have been rejected by the trial Court. 2. The suit was originally instituted by one Smt.Savithramma in the year 2008. It is the case of plaintiff that she and defendants are the members of undivided Hindu Joint Family. The suit schedule property is ancestral and joint family property of plaintiff and defendant Nos.1 to 9. She being member of a family has share in the property. When she demanded partition, defendants Nos.1 to 8 failed to effect partition and deliver 1/3rd share by metes and bounds. Hence, she was constrained to filed a suit and sought for partition and separate possession of her legitimate 1/3rd share in the suit schedule property. Plaintiff also sought permanent injunction restraining defendants Nos.1 to 8, their agents, representatives or anybody claiming through or under them from alienating or encumbering or creating any charge over the suit schedule property. The suit was seriously contested. Defendant No.7 has filed written statement on 6.3.2009 denying the plaint averments. During the pendency of the suit proceedings, the original plaintiff Smt. Savithramma died on 4.3.2011. Thereafter, petitioner filed application to come on record as legal representative of deceased plaintiff Smt.Savithramma. The said application was seriously opposed by defendant No.7 on the ground that Sri.R.M.Sudarshan is neither the natural nor the adopted son of deceased plaintiff-Savithramma. However, the trial Court allowed the application and permitted petitioner to come on record as legal representative of deceased plaintiff subject to the proof that he is son of deceased plaintiff-Smt Savithramma. The matter was posted for final arguments to 05.03.2019 and then to 14.03.2019. On "14.03.2019" plaintiff moved two applications, viz., i) I.A.No.18 under Order XVIII Rule 17 r/w Section 151 of CPC to recall the order of closing the evidence of P.W.1 and permit P.W.1 to lead further examination in chief and ii) I.A.No.19 under Order VII Rule 14(a) r/w Section 151 of CPC for production of documents. On "14.03.2019" plaintiff moved two applications, viz., i) I.A.No.18 under Order XVIII Rule 17 r/w Section 151 of CPC to recall the order of closing the evidence of P.W.1 and permit P.W.1 to lead further examination in chief and ii) I.A.No.19 under Order VII Rule 14(a) r/w Section 151 of CPC for production of documents. The trial Court, has rejected the applications on 21.09.2019. Therefore, petitioner is before this Court. 3. Sri.Prakash.M. Patil, learned counsel appearing for petitioner/plaintiff has appeared in person. He contended that the order passed by the trial Court is illegal, arbitrary, perverse and the same is passed without proper appreciation of reasons assigned in applications. He submitted that the documents sought to be produced by petitioner are vital and important documents to support the case of petitioner and as such, it is just and necessary to permit petitioner to produce the same before the trial Court. Learned counsel further submitted that the documents which are sought to be produced before the trial Court were handed over to the counsel who was appearing earlier before the trial Court, but he did not produce the same before the trial Court. A further submission was made that petitioner was not aware of the impact of production of the document and hence, he did not press to present the same earlier. But, on coming to know the importance of the document he sought production of the same. Therefore, non-production of document is unintentional and it is a bonafide mistake on the part of petitioner. Hence, learned counsel vehemently urged that, if petitioner is not allowed to produce the document, he will be put to greater hardship. On the contrary, no hardship or injustice would be caused to defendants. Lastly, he contended that viewed from any angle, the order passed by the trial Court is unsustainable in law. Accordingly, he prayed for quashing of the orders passed by the trial Court. 4. Sri.Y.V. Parthasarathy, learned counsel for defendant No.7/respondent No.7 has appeared through video conferencing. He contended that the writ petition is wholly misconceived, untenable and hence, the same is liable to be set aside. The writ is filed only to protract suit proceedings. He submitted that Smt.Savithramma, D/o late Thimmarayappa filed the suit for partition and separate possession of her alleged 1/3rd share in the suit schedule property. Before evidence could be commenced, she passed away on 4.3.2011. The writ is filed only to protract suit proceedings. He submitted that Smt.Savithramma, D/o late Thimmarayappa filed the suit for partition and separate possession of her alleged 1/3rd share in the suit schedule property. Before evidence could be commenced, she passed away on 4.3.2011. Her husband predeceased her and she has died issueless. Before an order of abatement could be passed, petitioner claiming himself to be son of deceased plaintiff, moved an application to come on record as legal representative of deceased plaintiff-Savithramma. Defendant No.7 has seriously objected for the same. However, trial Court passed an order on 17.01.2012 permitting petitioner to come on record subject to the proof that he is the son of deceased plaintiff-Smt.Savithramma. In view of the above order, the plaint was amended and consequently, defendant No.7 filed additional written statement. He further submitted that plaintiff has filed an affidavit on 28.7.2014 and marked documents. The case was posted for his cross examination. Defendant No.7 seriously disputed the claim of Sri.R.M. Sudarshan being legal representative of deceased plaintiff Savithramma. Hence, he filed an application for framing an additional issue, which was granted on 11.11.2014 and an additional issue regarding as "whether Sri.R.M. Sudharashn proves that he is the legal representative of deceased plaintiff Smt Savitramma" was framed. Thereafter, plaintiff was cross-examined by defendant No.7 and plaintiff's evidence was closed on 19.7.2018. He did not make any attempt to lead further evidence. Hence, the trial Court posted the case to defendants' evidence and defendant No.7 filed his affidavit on 6.8.2018 and as plaintiff and his counsel remained absent, by order dated 12.09.2018, it was taken that plaintiff has no cross-examination of D.W.1. Thereafter, the case was posted to 28.09.2018 for arguments. On 04.12.2018, plaintiff filed an application to recall D.W.1 for cross-examination. The trial Court allowed the said application and instead of crossexamining D.W.1, plaintiff filed I.A.No.16 seeking time. That I.A. came to be dismissed and thereafter, the case was posted to 11.02.2019 for arguments. Learned counsel for defendant No.7 vehemently contended that at this stage I.A.No.17 was filed by plaintiff to recall D.W.1 for further cross-examination, which came to be allowed. D.W.1 was partly crossexamined on 11.02.2019 and thereafter, the case was adjourned to 25.2.2019 for further cross-examination of D.W.1. On that day, D.W.1 was examined in full. Thereafter, the case was posted for arguments to 05.03.2019 and then to 14.03.2019. D.W.1 was partly crossexamined on 11.02.2019 and thereafter, the case was adjourned to 25.2.2019 for further cross-examination of D.W.1. On that day, D.W.1 was examined in full. Thereafter, the case was posted for arguments to 05.03.2019 and then to 14.03.2019. At this stage, i.e., on 14.03.2019 plaintiff moved the above said applications and the same were rejected by the trial Court. In spite of the case being posted for final hearing, plaintiff remained absent. Instead of arguing the matter, plaintiff went on seeking time to argue the matter. A further submission was made that the trial court on 22.10.2019 recorded that plaintiff has no oral arguments, but permitted him to file written arguments. Defendant No.7 also submitted his written arguments on 31.10.2019. He submitted that it is at this stage, the above writ petition is filed and an ad-interim order is obtained. Lastly, learned counsel vehemently urged that plaintiff's evidence was closed as early as on 19.07.2018 and thereafter, plaintiff himself cross-examined defendant No.7 in full on 25.02.2019. The counsels appearing for the respective parties have also addressed arguments on the main. The case is posted for judgment. Despite there being a positive progress in the suit, the petitioner has filed this petition only to drag on the proceedings. Hence, he requested for the dismissal of the writ petition. 5. I have heard Sri.Prakash.M. Patil, learned counsel for petitioner and Sri.Y.V.Parthasarathy, learned counsel appearing for respondent No.7. Notice to respondents 1 to 6 and 8 to 14 is dispensed with vide order dated 18.03.2020. I have perused the papers. 6. The simple question involved in the present writ petition relates to re-opening of the case and production of document. It would be relevant to refer to Order XVIII Rule 17 of CPC, which reads as under: "Court may recall and examine witness The court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit." This Rule empowers the Court to recall at any stage a witness who has been examined and cross-examined. The power can be exercised by the Court suo motu as also at the instance of a party. 7. The power can be exercised by the Court suo motu as also at the instance of a party. 7. In the instant case, plaintiff has filed I.A.No.18 to recall the order of closing the evidence of P.W.1 and to permit him to lead further examination in chief. In support of the said application, plaintiff/Sri.R.M.Sudarshan has filed affidavit. Bearing that in mind, let me see what reasons are assigned in support of the said application. In the affidavit, it is stated that he may be permitted to lead further evidence in chief contending that he had given documents to the previous advocate as mentioned in the list at the time of filing L.R. application and he came to know about that at the time of cross-examination of D.W.1. The document is a registered Will which has not been produced before the Court. It is also stated that the Will executed by original plaintiff - Smt.Savithramma discloses that he is the legal representative of deceased plaintiff Savithramma. It was also averred that he has a good case on merits and if the application is not allowed, he will be put to greater hardship. The non production of documents are bonafide and not intentional. 8. But what is strange to notice is that except stating that he had given documents to the previous Advocate as mentioned in the list at the time of filing of LR application and he came to know that only at the time of cross examination of DW-1, plaintiff has not mentioned as to in what respect the further examination in chief was essential. Further, there is no explanation as to what are the essential questions that had not been put to the witnesses earlier. As rightly pointed by learned counsel for respondent No.7 that though a reference is made to the Will in the year 2015 itself, plaintiff did not take any steps for production of the document and lead further examination-in-chief. He made an attempt to move the application during 2019. 9. Though the Court can under Rule 17 act either suo motu or at the instance of a party, the power is intended to be sparingly used and for the purpose of clarifying ambiguities and not for filling up lacuna in the case of a party. He made an attempt to move the application during 2019. 9. Though the Court can under Rule 17 act either suo motu or at the instance of a party, the power is intended to be sparingly used and for the purpose of clarifying ambiguities and not for filling up lacuna in the case of a party. In the instant case, plaintiff has filed the application at the fag end of the trial i.e., when the matter was set down for arguments. It is also clear that the power is purely discretionary. The same ought to be exercised with greatest care and only in the most peculiar circumstances. The power is intended to be sparingly used and for the purposes of clarifying ambiguities and not for filling in lacuna in the case of a party. Therefore, the trial Court is justified in holding that there are no convincing reasons in support of the said application. It follows, from what I have said, that, in this case, there is no reason for interfering with the order of the trial Court in so far as the rejection of IA No.18. 10. Another application I.A.No.19 was filed under Order VII Rule 14 (a) read with Section 151 of CPC to permit plaintiff to produce the documents. In support of this application also, he has sworn to an affidavit wherein, similar grounds are urged as that of in I.A.No.18. While arguing the matter, learned counsel for petitioner vehemently urged that according to petitioner/plaintiff, original plaintiff Smt.Savithramma executed a Will on 18.02.2011 and she died on 04.03.2011. Thereafter, he came on record as the legal representative of deceased plaintiff Smt. Savithramma. Hence, Plaintiff sought permission to produce a Will which is said to have been executed by the original plaintiff Smt.Savithramma . 11. The grounds urged in support of the application are that he had given documents to the previous counsel as mentioned in the list at the time of filing LR application and he came to know that at the time of cross examination of DW -1. He had urged that the documents sought to be produced are vital and important documents and thus, made a prayer to the Court to permit him to produce the same. He had urged that the documents sought to be produced are vital and important documents and thus, made a prayer to the Court to permit him to produce the same. But, learned counsel for respondent No.7 has specifically contended that the cross-examination of P.W.1 recorded on 09.07.2015 and on page No.9 a reference to the Will has been made. But the application is made after lapse of 44 months. He also urged that the trial Court has taken into consideration of the admissions made by plaintiff in his cross-examination. 12. Let me consider the rival contentions. It is noticed that the application is filed under Order VII Rule 14 (a) of CPC. But there is no such sub-clause in Order VII of the Code of Civil Procedure. On the contrary, in Order VII of the Code, Rule 14 provides for production of documents on which plaintiff sues. Be that as it may, the trial Court has taken in to consideration of the rival contentions and has rightly come to the conclusion that there are no convincing and cogent reasons mentioned in support of the application to permit plaintiff to produce the documents. 13. Further, plaintiff has filed the application at the fag end of the trial i.e., when the matter was set down for arguments. In any case, in my opinion, the circumstances do not reflect bona fide on the part of plaintiff in seeking permission to produce documents. Therefore, the trial Court is justified in rejecting the application. 14. To conclude, I may venture to say that a Judge's order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary power, and would be interfered with by the High Court only in exceptional cases. In my opinion, the trial Court has exercised its power in right perspective. Indeed, the trial Court has taken into consideration of all the material facts and has rejected the applications. I find no reasons to interfere with the order passed by the trial Court on I.A.Nos.18 and 19 and exercise supervisory power under Article 227 of the Constitution of India. 15. Accordingly, writ petition is dismissed. In view of dismissal of the petition, all pending I.As. stands disposed of.