Karnataka High Court
K.R.Shivakumar vs Sri.G.M.Virupakshappa on 21 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.3768 OF 2022 (GM-CPC)
BETWEEN:
1. K.R. SHIVAKUMAR
S/O LATE K.B. RUDRAPPA
AGED 63 YEARS
BUSINESSMAN
R/A DOOR NO.1990
PURANTAR HOSPITAL ROAD
MCC A BLOCK
DAVANAGERE - 577 001
2. SRI K.R. PRAKASH
S/O LATE K.B RUDRAPPA
AGED 53 YEARS
R/A DOOR NO.1990
PURANTAR HOSPITAL ROAD
MCC A BLOCK
DAVANAGERE- 577 001.
3. SRI K R THIPPESH
S/O LATE K.B RUDRAPPA
AGED 51 YEARS
R/A DOOR NO.1990
PURANTAR HOSPITAL ROAD
MCC A BLOCK
DAVANAGERE - 577 001
4. SRI K R VEERANNA
S/O LATE K.B RUDRAPPA
AGED 53 YEARS
R/A DOOR NO.1990
PURANTAR HOSPITAL ROAD
2
MCC A BLOCK
DAVANAGERE-577 001.
5. SRI K R PRABHU
S/O LATE K.B RUDRAPPA
AGED 46 YEARS
R/A DOOR NO.1990
PURANTAR HOSPITAL ROAD
MCC A BLOCK
DAVANAGERE - 577 001.
6. SRI P MURALIDHAR RAO
S/O LATE P NARAYANA RAO
AGED 50 YEAS
R/A 1ST MAIN, 7TH CROSS
K B EXTENSION
DAVANAGERE - 577 001.
...PETITIONERS
(BY SRI D.R. RAVISHANKAR, SENIOR ADVOCATE
FOR SRI SARAVANA S., ADVOCATE)
AND:
1. SRI G.M. VIRUPAKSHAPPA
S/O SRI MAHESHWARAPPA
AGED ABOUT 46 YEARS
R/A DOOR NO.1660/35
11TH CROSS, TARALABALU EXTENSION
VIDYANAGAR
DAVANAGERE - 577 001.
2. THE COMMISSIONER
CITY CORPORATION
DAVANAGERE- 577 001.
3. THE COMMISSIONER
DAVANAGERE URBAN DEVELOMENT AUTHORITY(DUDA)
DAVANAGERE - 577 001.
....RESPONDENTS
(BY SRI YESHU MISHRA, ADVOCATE
FOR SRI ANOOP HARANAHALLI, ADVOCATE
FOR CAVEATOR RESPONDENT NO.1)
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
APPROPRIATE NATURE TO SET ASIDE THE ORDERS DATED 04TH
JANUARY, 2022 AT ANNEXURE-F2 PASSED ON IA NO.34 IN OS NO.77
OF 2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AT
DAVANAGERE AND CONSEQUETLY ALLOW THE APPLICATION FILED IN
I.A. NO.34 AS PER ANNEXURE-F; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by the plaintiffs, challenging the
order dated 04th January, 2022 passed on IA No.34 in OS No.77
of 2015 on the file of the I Additional Senior Civil Judge,
Davanagere, dismissing the application with cost.
2. Brief facts of the case for adjudication of this Writ
Petition are that, the plaintiffs filed suit against the defendants
seeking relief of declaration with consequential relief of
mandatory and permanent injunction. The suit is contested by
the defendants by filing written statement. The plaintiff No.4
has been examined as PW1. At that stage, the plaintiff filed
application in IA.34 under Section 151 of Code of Civil
Procedure, seeking permission to re-examine PW1 and the said
application was resisted by the defendants. The trial Court, after
considering the material on record, by its order dated 04th
January, 2022, dismissed the application with cost of Rs.2,000/-.
Being aggrieved by the same, plaintiffs have preferred this writ
petition.
3. I have heard Sri D.R. Ravishankar, learned Senior
Counsel appearing on behalf of Sri Saravana S, for the petitioner
and Sri Yeshu Mishra, learned Counsel appearing on behalf of Sri
Anoop Haranahalli, learned counsel for the caveator respondent
No.1.
4. Sri D.R. Ravishankar, learned senior counsel submitted
that on 20th September, 2021, a specific question was posed to
PW1 as to the variation of measurement and same was denied
by him. However, the trial Court has recorded deposition
contrary to the answer given by the witness. In this regard, he
further submitted that, immediately same was brought to the
notice of the Court by the learned Counsel representing PW1-Sri
Arun Manjunath Hegde. However, same was not rectified. In
this regard, he drew the attention of the Court to the Affidavit
(Annexure-E) filed by Sri Arun Manjunath Hegde and argued that
though the PW1 answered to two questions as "¤dªÀ®è", but in the
deposition it was mentioned as "¤d" and therefore, he contended
that the application made by the plaintiff to rectify the said
ambiguous answer occurred in the deposition of PW1, was
wrongly dismissed by the trial Court.
5. Per contra, Sri Yeshu Mishra, learned counsel
representing the respondent No.1 sought to justify the impugned
order.
6. In the light of the submission made by the learned
counsel appearing for the parties, it is not in dispute that the suit
is filed for declaration with consequential relief of mandatory and
permanent injunction and the defendants are contesting the
matter by filing necessary pleadings. I have carefully considered
the averments made in IA.34 filed by the plaintiff seeking
permission to re-examine PW1 in respect of answer occurred in
the deposition of PW1 dated 29th September, 2021. The finding
recorded by the trial Court at paragraph 7 of the impugned order
is perused along with the deposition referred to by the learned
counsel appearing for the parties. The same reads as under:
"¤¦B 49 gÀ C¼ÀvÉUÉ ªÀåwjPÀÛªÁV £ÁªÀÅUÀ¼ÀÄ £ÀªÀÄä Rjâ ¥ÀvÀæzÀ°è
1182 ZÀzÀgÀ CrAiÀÄÀ D¹ÛAiÀÄ£ÀÄß vÉÆÃj¹PÉÆArzÉÝÃªÉ JAzÀgÉ ¤d."
In the 2nd page of 2nd line:
"¤¦B 49 jAzÀ 60 zÁR¯ÉUÀ¼À°è ºÉZÀÄѪÀjAiÀiÁV 1182 ZÀzÀgÀ Cr
D¹Û ®¨sÀå EvÀÄÛ CAvÀ AiÀiÁªÀ zÁR¯ÉUÀ¼À°èAiÀÄÆ G¯ÉèÃR E®è JAzÀgÉ ¤d."
7. In the aforementioned deposition, it is recorded as
"¤d". However, the contention of plaintiffs is that the said
deposition has to be recorded as "¤dªÀ®è". In this regard, it is
relevant to extract the law declared by the Hon'ble Apex Court in
the case of STATE OF MAHARASHTRA v. RAMDAS SHRINIVAS
NAYAK reported in AIR 1982 SC 1249, wherein it is observed as
follows:
"The judges', record wais conclusive. Neither
lawyer nor litigant may claim to contradict it, except
before the judge himself, but nowhere else. The court
could not launch into inquiry as to what transpired in the
High Court. The Court is bound to accept the statement
of the Judges recorded in their judgment, as to what
transpired in court. It cannot allow the statement of the
Judges to be contradicted by statements at the Bar or by
affidavit and other evidence. If the Judges say in their
judgment that something was done, said or admitted
before them, that has to be the last word on the subject.
The principle is well settled that statements of fact as to
what transpired at the hearing, recorded in the judgment
of the court, are conclusive of the facts so stated and no
one can contradict such statements by affidavit or other
evidence. If a party thinks that the happenings in court
have been wrongly recorded in a judgment, it is
incumbent upon the party, while the matter is still fresh
in the minds of the Judges, to call the attention of the
very Judges who have made the record to the fact that
the statement made with regard to his conduct was a
statement that had been made in error. That is the only
way to have the record corrected. If no such step is
taken, the matter must necessarily end there."
8. The aforementioned law was reiterated by the Hon'ble
Apex Court in the case of D.P. CHADHA v. TRIYUGI NARAIN
MISHRA AND OTHERS reported in (2001)2 SCC 221. In the light
of the law declared by the Hon'ble Apex Court, I am of the view
that the finding recorded by the trial Court rejecting the
application is just and proper, which does not call for any
interference in this writ petition. However, taking into account
the arguments advanced at the Bar, I have been constrained to
say that, while passing the orders on the applications, the trial
Court shall desist from making any adjectives, particularly
stating that the "litigant is clever", etc., that too while giving
finding on the deposition. Giving a finding on the deposition
relating to adjectives of the conduct of the litigant during the
pendency of the suit, would affect the final adjudication of the
suit. In this regard, the observation made by the trial Court in
the impugned order as "the PW1 is clever", is to be expunged
from the impugned order to pave way for fair adjudication of the
suit by the trial Court, after conclusion of evidence.
In terms of the observation made above, Writ Petition
stands disposed of.
Sd/-
JUDGE
lnn
