L Govindaraju vs Basavaraja B A
2022 Latest Caselaw 11501 Kant

                             1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF AUGUST, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

     WRIT PETITION NO.37464 OF 2016 (GM-CPC)

BETWEEN:

L. GOVINDARAJU
S/O LAKSHMANA GOWDA,
AGED ABOUT 43 YEARS
NO.10, AMBLIPURA,
SARJAPURA MAIN ROAD,
BENGALURU-560 008.
                                          ...PETITIONER
(BY SRI. MANIAN K.B.S., ADVOCATE)

AND:

1.     BASAVARAJA B.A.
       S/O ANJINAPPA,
       AGED ABOUT 53 YEARS
       RESIDING AT "SRI RAMA NILAYA",
       BYRATHI, DODDAGUBBI POST,
       BENGALURU-560 077

2.     ANNAPPA R. GUDIGAR
       S/O LATE RAMAPPA,
       AGED MAJOR,
       RESIDING AT NO.51,
       3RD MAIN ROAD, 11TH CROSS,
       PRASANTHNAGAR,
       BENGALURU-560 079.
                                        ...RESPONDENTS
(BY SRI. PRAKASH T. HEBBAR, ADVOCATE FOR RESPONDENT
NO.1;
SRI. H.R.RAGHU, ADVOCATE FOR RESPONDENT NO.2)
                               2

     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER IN
O.S.NO.203/2011 IN I.A.NO.2 AT ANNEXURE-A PASSED BY THE
HON'BLE I ADDL. CIVIL JUDGE (SENIOR DIVISION),
BENGALURU RURAL AT BANGALORE DATED 11.09.2015 AND
ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This writ petition is filed by the applicant in

O.S.No.203/2011 on the file of the I Addl. Civil Judge

(Senior Division), Bengaluru Rural District, Bengaluru,

challenging an order dated 11.09.2015, in terms of

which, an application filed by him for impleadment was

rejected in view of the default of his counsel in

appearing before the Court.

2. A suit in O.S.No.203/2011 was filed for the

relief of declaration and injunction in respect of the land

bearing Sy.No.14/1 of Jinkethimmanahalli @ Varanasi

Village, Bidarahalli Hobli, Bengaluru East Taluk. After

the said suit was filed, the petitioner herein had filed

O.S.No.906/2011 on the file of the II Addl. Senior Civil

Judge, Bengaluru Rural District, Bengaluru, for specific

performance of an agreement of sale dated 11.12.2003

allegedly executed by the defendant in

O.S.No.203/2011. In the suit filed in O.S.No.906/2011,

the Trial Court had passed an order of injunction

restraining the defendant in O.S.No.203/2011 from

alienating the suit schedule property and from changing

the nature of the property, which was initially in force

for a period of ten months from the date of the order.

Later, an application was filed by the petitioner herein

in O.S.No.203/2011 for impleadment in the suit since

he apprehended that the parties in O.S.No.203/2011

may bring about an unconscionable compromise by

suppressing the agreement of sale dated 11.12.2003.

This application was listed on 26.05.2011 for objections

to the application. Unfortunately, the counsel for the

petitioner was absent on 10.07.2015 and the case was

adjourned to 11.09.2015. On 11.09.2005, again the

counsel and the petitioner were absent. Hence, the

application was rejected.

3. The petitioner has challenged this order of

rejection of his application on various grounds. One of

the contentions urged in the writ petition is that the

application ought to have been considered on merits

notwithstanding the absence of the counsel on the

hearing date and that the Trial Court failed to pass a

speaking order.

4. The learned counsel for the respondent

No.1 submitted that this writ petition is not

maintainable since the Trial Court has not rejected the

application on merits but has rejected it due to default

on the part of the petitioner as well as his counsel to

appear before the Trial Court. He however, submitted

that if the petitioner is interested, he may seek revival

of the application before the Trial Court by filing

appropriate application or file a fresh application, if the

law permits.

5. In that view of the matter, there is no need

for this Court to consider whether the Trial Court was

justified in rejecting the application or not.

6. Be that as it may, since the learned counsel

for the petitioner was insistent that the Court hears him

before passing any orders, he was called upon to

address his arguments. However, the learned counsel

for the petitioner refused to address the arguments

accusing the Court of not providing enough opportunity

and audience. He even refused to acknowledge the

concession made by the learned counsel for the

respondent No.1 and insisted the Court to decide the

case on merits rather than accepting the concession

made by the learned counsel for the respondent No.1.

7. Having regard to the fact that the Trial

Court has not decided the application on merits but has

rejected the application in view of the default of the

counsel, who appeared for the applicant before the Trial

Court, this Court does not find any error as the Court

was merely exercising the jurisdiction vested in it under

Order XVII Order 2 of the Code of Civil Procedure, 1908

(henceforth referred to as "CPC" for short).

Nonetheless, having regard to the fact that the

petitioner/applicant has already obtained an order of

injunction in O.S.No.906/2011 restraining the

defendant in O.S.No.203/2011 from alienating or

encumbering the suit property, it is appropriate that an

opportunity is granted to the petitioner/applicant to

showcase his rights, if any, before the Trial Court.

8. Hence, the writ petition is allowed-in-part.

The impugned order dated 11.09.2015 passed by the I

Addl. Civil Judge (Senior Division), Bengaluru Rural

District, Bengaluru, rejecting the I.A.No.2 filed under

Order I Rule 10(2) of CPC is set aside. Consequently,

I.A.No.2 filed by the petitioner is restored to the file of

the Trial Court, which shall consider the same in

accordance with law.

9. Before parting with this case, this Court

despite hesitance, has felt it inevitable to record the

irreprehensible conduct of the learned counsel for the

petitioner Mr.K.B.S.Manian while conducting this case. A

little background of events that unfolded yesterday in

another writ petition namely, W.P.No.8450/2022 where

Mr. K.B.S. Manian was the counsel for the petitioner,

deserves mention. The learned counsel Mr. K.B.S. Manian

was arguing the case at an extremely unbearable raised

voice mocking at the advocates appearing for the other

side. The attempts of the Court to keep his voice low only

emboldened him to raise his voice further. After a

prolonged verbal duel, W.P.No.8450/2020 was adjourned

to 24.08.2022. Today, when this writ petition was taken

up, suddenly Mr. K.B.S. Manian had kept his voice so low

that we could barely hear him and Mr. Prakash T. Hebbar,

who had joined through video conference, informed the

Court that he could not hear Mr. K.B.S. Manian. At that

stage, Mr. K.B.S. Manian had to be told to speak into the

mike. After hearing him, Mr. Prakash T. Hebbar argued

stating that the Trial Court had not rejected the application

on merits but was rejected due to the default in

appearance by the counsel. He however contended that

he would have no objection for restoration of the

application. Mr. K.B.S. Manian without any provocation

stood up and claimed that "I do not want any concession

from him. I will argue the case and you (referring to the

Court) decide it". At this stage, the Court asked him what

is there to argue Mr. K.B.S. Manian stared at the Court and

asked "Can't you (referring to the Court) decide this case

on merits? I have come fully prepared with a long list of

judgments. Yesterday you (referring to the Court) did not

allow me to address my arguments and today you

(referring to the Court) are forcing me to accept what he

says". The Court informed him that yesterday's happenings

are forgotten and told him that he can make a good

Advocate provided he keeps his anger in control. For this

he responded that "I don't need a certificate from you

(referring to the Court). I am what I am". Realising that

this is an absolute waste of time, the writ petition was

taken up for consideration and allowed. Mr. K.B.S. Manian

banged his file so hard that everyone in the Court were

stunned. The Court scorned his conduct, to which he

responded that he was hammered by many Judges and

that he can't be cowed down anymore.

10. Since the conduct of Mr. K.B.S. Manian was an

overspill of his annoying behaviour exhibited in

W.P.No.8450/2022 that was listed before the Court

yesterday, the events that occurred in that writ petition

also deserve to be mentioned. In that case, the Trial Court

had refused to issue a commission to examine a witness to

a Will, who was suffering from ailments of the heart and as

per the opinion of a Cardiologist, the man's heart was

functioning only upto 24% and was therefore, advised not

to venture out of his house. The Trial Court directed that

instead of this witness, another attesting witness could be

examined, which was done. However, his cross-

examination was deferred at the request of the defendants

on the premise that both the witness would be cross-

examined on the same day. At that stage, an application

was filed to appoint a commission for recording the

statement of the witness, which was opposed and the trial

Court rejected it. This was challenged before this Court in

W.P.No.8450/2022, where Mr. K.B.S. Manian was

representing the petitioner. Soon after, Mr. K.B.S. Manian

howlingly opened his arguments, the Court asked him to

sober down but he was in no mood to listen and spewed

out thundering decibels of sound in the Court and accused

the advocate for the other side of delaying the proceedings

so that the witness dies in the process. In order to diffuse

the situation, the Court turned to Mr. D.L.N. Rao, the

learned Senior Counsel, who was leading the counsel for

the respondent, to know why a commission should not be

issued. At that stage, Mr. D.L.N. Rao stated that there

should be no difficulty for appointment of a commission

and suggested that in view of the sensitive health

condition of the witness, a doctor of the choice of the

witness should also be present to deal with any untoward

event. Mr. K.B.S. Manian flared up and chided "who is he

to suggest that a doctor should be present?" He started

ridiculing Mr. D.L.N. Rao asking him his age and how he

could argue sheepishly without checking the facts from his

briefing counsel. He yelled at Mr. D.L.N. Rao and claimed

that if he argued further, then Mr. D.L.N. Rao has to

tender an unconditional apology to him and his client.

When the Court reprimanded him to keep his voice low, he

chided the Court saying that all other Judges are overawed

by his forceful submissions and this was the only Court

which felt otherwise. At this stage, Mr. D.L.N. Rao, lost his

cool and damned him and thud came an audacious

response from Mr. K.B.S. Manian "Sir Who made you a

Senior Counsel?" He then turned to the Court and said

"What kind of Senior Counsel are we producing?" The

Court was absolutely shell shocked by the abominable

behaviour of Mr. K.B.S. Manian and had to sit through upto

5-45 p.m. attempting to convince him to accept the

suggestion made by the learned Senior Counsel.

W.P.No.8450/2022 was adjourned to 24.08.2022 for

obtaining the consent of Dr. Srinivas, who had given his

opinion about the health condition of the witness.

11. The overbearing conduct of Mr. K.B.S. Manian

forced the Court to ponder whether this is a solitary

outburst or does he do the same before other Judges of

this Court. When he was informed that his conduct clearly

amounted to contempt, he rebuked and said "You

(referring to the Court) have the power. You (referring to

the court) do whatever you want." Going by the way Mr.

K.B.S. Manian has conducted himself before this Court on

two consecutive dates, this Court can assess the way in

which Mr. K.B.S. Manian must have treated the Judges in

the Trial Court. This Court is of the clear view that the

conduct of Mr. K.B.S. Manian, more particularly, shaming

the Senior Advocate in front of a large number of young

lawyers and pointing to the Court "What kind of Senior

Counsel are we producing?" and referring to the Court as

"you" and chiding the Court "Can't you decide the case?"

and similar such utterances digressing from the issue in

controversy which the Court cannot immediately recollect

and howling at the top of his voice, is contumacious and

demeans the authority of the Court, apart from wastage of

precious time of the Court. Hence, he deserves to be

proceeded against, else it would be a licence for him to

indulge in such abhorrent behaviour. Hence, this Court

takes cognizance of the contempt committed by Mr. K.B.S.

Manian under Article 215 of the Constitution of India.

12. The Registry is directed to place this order

before Hon'ble the Acting Chief Justice for appropriate

orders for placing it before the Bench having roster to deal

with the case. The Registrar General shall file appropriate

petition before the Bench as provided in law.

13. The Registry is also directed to place this order

before the Full Bench to know whether Mr. K.B.S. Manian

has indulged in similar such behaviour before the other

Hon'ble Judges of this Court and if yes, to decide the

action to be taken.

Sd/-

JUDGE

PMR