Karnataka High Court

Kavita And Ors vs Jijabai And Ors on 25 November, 2021

Bench: M.I.Arun

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

    DATED THIS THE 25TH DAY OF NOVEMBER, 2021

                     BEFORE

         THE HON'BLE MR. JUSTICE M.I.ARUN

    WRIT PETITION NO.201215/2021 (GM-CPC)

BETWEEN:

1. KAVITA W/O NARAYANRAO,
   AGE 35 YEARS, OCC.HOUSEHOLD,
   R/O AMADABAD, NOW AT NELWAD,
   TQ AND DIST.BHALKI, BIDAR.

2. SUNITA W/O NAGENDRA
   AGE 38 YEARS, OCC.HOUSEHOLD,
   R/O AMADABAD, NOW AT HUNSAL,
   TQ. AND DIST.BHALKI, BIDAR.

3 . LALITA W/O BALAJI
   AGE 40 YEARS, OCC.HOUSEHOLD,
   R/O AMADABAD,
   TQ AND DIST.BHALKI, BIDAR.

                                   ... PETITIONERS

(BY SRI GANESH S.KALABURAGI, ADVOCATE FOR
SRI AMEET KUMAR DESHPANDE, ADVOCATE)

AND:

1. JIJABAI W/O LATE GUNDAJI,
   AGE 77 YEARS, OCC.HOUSEHOLD,
   R/O AMADABAD, TQ. AND DIST.BHALKI,
   BIDAR-585444.
                         2


2. KERABAI D/O MAHADU
   AGE 42 YEARS, OCC.AGRICULTURE,
   R/O AMADABAD, TQ AND DIST.BHALKI,
   BIDAR-585444.

3. PANCHABAI W/O LIMBRAJ
   AGE 39 YEARS, OCC.AGRICULTURE,
   R/O AMADABAD, TQ AND DIST.BHALKI,
   BIDAR-585444.

4. SUDHAKAR S/O LATE SHRIPATH RAO
   AGE 42 YEARS, OCC.AGRICULTURE,
   R/O AMADABAD, TQ AND DIST.BHALKI,
   BIDAR-585444.

5. NAGUBAI W/O LIMBRAJ
   AGE 73 YEARS, OCC.AGRICULTURE,
   R/O AMADABAD, TQ AND DIST.BHALKI,
   BIDAR-585444.

6. SHANTABAI W/O MADHUKAR RAO SAPATE
   AGE 52 YEARS, OCC.AGRICULTURE,
   R/O AMADABAD, TQ AND DIST.BHALKI,
   BIDAR-585444.
                                  ... RESPONDENTS

(BY SRI RAVI B.PATIL, ADVOCATE FOR R6;
NOTICE TO R1 TO R5 DISPENSED WITH)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 28.05.2021 PASSED ON I.AS. DATED
21.01.2021 FILED BY THE DEFENDANT NO.6 IN
O.S.NO.88/2013 ON TH FILE OF THE CIVIL JUDGE AND
JMFC, BHALKI, THE CERTIFIED COPY OF WHICH IS AT
ANNEXURE-J AND ETC.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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                          ORDER

Aggrieved by the common order passed in

Interlocutory Applications dated 21.01.2021 in

O.S.No.88/2013 by Civil Judge and JMFC, Bhalki, the

plaintiffs therein have preferred this writ petition.

2. The brief facts of the case are that the plaintiffs

have filed a suit for partition and separate possession.

Defendant No.6 has filed his written statement and has

also partially cross-examined the plaintiff witnesses.

Thereafter, learned counsel for defendant No.6 expired due

to Covid-19. In his absence, the case was proceeded with,

evidence of parties were recorded and the arguments were

heard and case was posted for judgment. However, in the

absence of his counsel, defendant No.6 was not in a

position to complete the cross-examination of plaintiff's

witnesses nor lead his evidence or address his arguments.

She could not also track the progress of the case. Finally,

when she learnt about the case, the case was posted for

judgment and at this juncture, she engaged the service of

another counsel and filed necessary applications for

reopening the case and also cross examine PW-2 and lead

her evidence. This was objected to by the

plaintiffs/petitioners herein on the ground that once the

case is posted for judgment, the question of reopening the

same cannot be allowed. However, the trial Court has

allowed the interlocutory application filed by the defendant

No.6/respondent No.6 herein and has permitted the

defendant No.6 to cross-examine PW-2 and also to lead

her evidence. Aggrieved by the same, the instant writ

petition is filed.

3. The learned counsel for the petitioners relies

upon the judgment of this Court in Rabiya Bi Kassim M.

vs. The Country Wide Consumer Financial Service

Ltd., reported in ILR 2004 KAR 2215, paragraphs 9 and

10 of the said judgment reads as under:-

"9. On consideration, we are of the opinion that once the matter has been finally heard and posted for judgment, as held by the Supreme Court in ARJUN SINGH's case (supra)

nothing is required to be done by the Court except to pronounce the judgment, and therefore the decision in LAXMINARAYAN ENTERPRISES case is not helpful. Admittedly, Clause (4) of Order 18 Rule 2, of CPC has been deleted and therefore the respondent-plaintiff cannot take advantage of LAXMINARAYAN's case in the facts of the given case. Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are governed by CPC. The CPC has been amended from time to time. Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7.2002. In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001. In our view, if the matter is reserved for pronouncement of judgment, such

an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.

10. As discussed above, in the facts of the case on hand, we are of the opinion that making an interlocutory application to reopen the case and record further evidence after the matter is reserved for pronouncement of judgment is not permissible. We answer the question referred for decision by holding that no application can be filed after the final arguments have been heard and the matter is posted for judgment. The Single Bench decision of this Court in LAXMINARAYAN ENTERPRISES v. LAXMINARAYAN TEXTILE is not applicable in view of the decision of the Supreme Court and as stated above."

Based on the said citation, the petitioners contend

that the trial Court ought to have dismissed the

Interlocutory Applications.

4. Per contra, learned counsel for the respondent

No.6 submits that as per the provision of Order 18 Rule 17

of CPC, the Court may recall and examine witnesses at any

stage of the suit and given the facts and circumstances of

the case submits that the law laid down in ILR 2004 KAR

2215 does not apply and prays for dismissal of the writ

petition.

5. Order 18 Rule 17 of CPC reads as under:-

"17. 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."

6. Given the facts and circumstances of the case,

this Court in Rabiya Bi Kassim M. vs. The Country

Wide Consumer Financial Service Ltd., mentioned

supra, came to the conclusion that once the case is posted

for final judgment, the Court should proceed to pass the

same and should not reopen the case. The basis for the

said judgment is that the defendant was indulging in delay

tactics and amendment was carried out in CPC to prevent

the same. But the facts and circumstances of the instant

case are different. In the instant case, there has been no

attempt on part of the defendant No.6 to drag the

proceedings and has she been diligent in conducting her