Karnataka High Court
Ashwini Kumar S vs Mrs Chitra Kylas on 4 July, 2024
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NC: 2024:KHC:25304
WP No. 23536 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.23536 OF 2022 (GM-CPC)
BETWEEN:
ASHWINI KUMAR S
S/O LATE CHINTAMANI SADANAND
AGED ABOUT 52 YEARS,
RESIDING AT FLAT NO.5,
KALPASREE APARTMENT,
II FLOOR, DEVANATHAN STREET,
MANDAVELI CHENNAI,
PRESENTLY RESIDING AT
FLAT NO.G2, GROUND FLOOR,
SAPTHAGIRI APARTMENT, NEW NO.2
OLD NUMBER 22/23, SUNDARRAJAN STREET,
ABHIRAMAPURAM, CHENNAI-600018
...PETITIONER
(BY SRI. AKSHAYA B.M., ADVOCATE)
Digitally
signed by AND:
MEGHA
MOHAN
MRS. CHITRA KYLAS
Location:
HIGH COURT D/O LATE CHINTAMANI,
OF AGED ABOUT 57 YEARS,
KARNATAKA RESIDING AT
OLD NO.38, NEW NO.98,
BAZULLAHA ROAD, T. NAGAR,
CHENNAI, NOW CAMPED AT
BENGALURU-600017.
...RESPONDENT
(BY SRI. B. JANARDHANA, ADVOCATE)
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NC: 2024:KHC:25304
WP No. 23536 of 2022
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 17.11.2022 ANNEXURE-A PASSED BY THE
LEARNED LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE (CCH-63) REJECTING THE I.A NOS.8 AND 9 IN
O.S. NO.6315/2015 CONSEQUENTLY ALLOW THE I.A NOS.8
AND 9 FILED BY THE PETITIONER BY PERMITTING HIM TO
ADDUCE ADDITIONAL EVIDENCE IN OS.NO.6315/2015.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order dated 17.11.2022 passed on I.A. Nos.8 and 9 in O.S. No.6315/2015 on the file of LXII Additional City Civil and Sessions Judge, Bengaluru, the defendant is before this Court.
2. The plaintiff and the defendant are sister and the brother. The suit is filed for partition and separate possession of the plaint schedule property. After the evidence on the side of the defendant is completed and when the matter is posted for arguments and after the arguments of the plaintiff are concluded, the present I.As., i.e., I.A.Nos.8 and 9 are filed by the defendant. I.A. No.8 is filed to permit the defendant to -3- NC: 2024:KHC:25304 WP No. 23536 of 2022 reopen the case and to adduce evidence and I.A. No.9 is filed to summon the witness of a power of attorney. Both the applications came to be dismissed by the Trial Court. The Court observed that on perusal of the order sheet dated 29.07.2022, it disclosed that both the counsels submitted their arguments and case was posted for furnishing citations, then again counsel for the defendant filed the said I.As., and counsel for the defendant after conclusion of the evidence, as an afterthought, he had filed the aforesaid I.As. The Trial Court on perusal of the I.As., and also in the light of the ratio laid down by this Court in the case of Smt. Pillamma and others v. Smt. Munithayamma and Others1, dismissed the applications holding that there are no reasonable grounds to allow the same. Aggrieved thereby, the defendant is before this Court,
3. Learned counsel for the petitioner - defendant submits that there is no dispute about the fact that the property is the self acquired property of the father and he had executed a general power of attorney dated 26.05.2009 in favour of his family friend by name Sri N. Jayaraman as he was staying at Chennai and property was situate at Bangalore and 1 2016(1) KCCR 337 -4- NC: 2024:KHC:25304 WP No. 23536 of 2022 because of his old age, he was not able to travel to Bangalore. Thereafter, the said Sri N. Jayaraman at the instance of the father had executed a registered gift deed in favour of the defendant on 02.06.2009. These documents were disputed by the plaintiff and it is stated that the said Sri N. Jayaraman is not the family friend and as the father was suffering from dementia and he was not in a fit state of mind, these documents have come into existence. Annexure 'K' indicates that an additional issue was framed by the Trial Court in the year 2019 and issue No.2 was recasted by the Trial Court in the year 2022. The additional issue that was framed in the year 2019 is as follows:
"Whether the defendant proves that he is absolute owner in possession of suit schedule property by virtue of gift deed dated 02.06.2009?".
The issue No.2 that was recasted in the year 2022 is as follows:
"Whether plaintiff further proves that her father late Chintamani Sadanand was not in fit state of mind to execute an alleged GPA dated 26.05.2009 in favour of N. Jayaraman?".-5-
NC: 2024:KHC:25304 WP No. 23536 of 2022
4. Learned counsel submits that after the issues were recasted, in the next month, the defendant filed the applications - I.A Nos.8 and 9. It is stated that during the COVID-19 pandemic, as the witness was in Madras, his presence could not be secured. As such, they could not examine him and it is submitted that the Court has to look at the substantial justice and interest of the parties. He submits that there is no straitjacket formula that any application that is filed for adducing evidence when the matter is posted for arguments cannot be entertained. He has relied upon the judgment of the Hon'ble Apex Court in the case of K.K.Velusamy v. N. Palanisamy2 wherein the Court had considered the scope of Order XVIII Rule 17 of the Code of Civil Procedure, 1908 and observed that ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, reopening, recalling or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory 2 2011(11) SCC 275 -6- NC: 2024:KHC:25304 WP No. 23536 of 2022 applications which in turn add to the period of pendency. However, in a particular facts of the case i.e., in the said case, both the High Court as well as the Trial Court had mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings and the Courts have not applied their mind to the question whether such evidence would be relevant and whether the ends of justice require permission to let in such evidence and accordingly, interfered with the order passed by the Trial Court which was affirmed by the High Court and permitted the party to adduce further evidence. Basing on this judgment, learned counsel submits that this is a case where the evidence of witness to the power of attorney was required and in the interest of the parties, it is necessary that the writ petition has to be allowed and I.A. Nos.8 and 9 are also to be allowed.
5. Learned counsel appearing for the respondent - plaintiff submits that the Court below had rightly dismissed the applications. He submitted that after the issues were recasted, after the trial was concluded and when the matter was posted for arguments, arguments were advanced with regard to the -7- NC: 2024:KHC:25304 WP No. 23536 of 2022 fact that none of the witnesses to the general power of attorney were examined and after they quoting the judgment of the Hon'ble Apex Court as well as the judgment of the High Court which were referred to in the order impugned, then as an afterthought, the present applications are filed by the defendant. Learned counsel submits that if applications in this manner are allowed, there would be no end to the litigation. The party cannot be permitted to take advantage and it is nothing but pure abuse of the process of law and these kind of applications cannot be allowed and the Trial Court had rightly dismissed I.A. Nos.8 and 9 filed by the defendant to reopen the stage of the case and recall and summon the witness.
6. Having heard the learned counsels on either side, perused the material on record.
7. The suit is of the year 2015 and it appears that two issues were recasted by the Trial Court in the year 2019 and in the year 2022. The matter was posted for arguments and the defendant has though such a fact he has pleaded, but he has failed to examine the said witness. As rightly pointed out by the learned counsel for the respondent that there is a delay on -8- NC: 2024:KHC:25304 WP No. 23536 of 2022 the part of the petitioner in filing applications I.A. Nos.8 and 9. At the same time, just because on the ground of the delay itself, this Court cannot dismiss the applications without looking into the relevancy of the same. However, for the delay and for the latches on the part of the petitioner - defendant, cost should be imposed on him. In the facts and circumstances of the case, this Court deems it appropriate to set aside the order impugned.
Accordingly, the following:
ORDER (1) The order dated 17.11.2022 passed on I.A. Nos.8 and 9 in O.S. No.6315/2015 on the file of the LXII Additional City Civil and Sessions Judge, Bengaluru, is set aside and consequently, I.A. Nos.8 and 9 are allowed on the condition that the petitioner - defendant shall pay an amount of Rs.10,000/- (Rupees Ten Thousand only) as cost to the respondent -
plaintiff within a period of two weeks from the date of receipt of a certified copy of this order. (2) Accordingly, the writ petition is allowed. -9-
NC: 2024:KHC:25304 WP No. 23536 of 2022 (3) All I.As. in this writ petition shall stand closed.
SD/-
JUDGE SMA/List No.: 1 Sl No.: 9