Karnataka High Court
Atlanta Limited vs Sjr Infrastructure Private Limited on 12 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
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WP No. 8601 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 8601 OF 2023 (GM-CPC)
BETWEEN:
ATLANTA LIMITED, A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICR AT 101,
SHREE AMBA SHANTI CHAMBERS,
OPP. HOTEL LEELA KEMPENSKI,
ANDHERI-KURAL ROAD, ANDHERI (EAST),
MUMBAI - 400 059. REP. BY ITS CHAIRMAN AND
MANAGING DIRECTOR, MR.RAJHOO BHAROT.
...PETITIONER
(BY SRI.ABHINAY V., ADV. FOR SMT.MANEESHA KONGOVI., ADV.
FOR M/S.INDUS LAW, ADVOCATES)
AND:
SJR INFRASTRUCTURE PRIVATE LIMITED,
A COMPANY INCORPORATED AT THE
PROVISIONS OF THE COMPANIES ACT, 1956,
Digitally signed HAVING ITS REGISTERED OFFICE AT
by SUCHITRA M
J SJR PRIMUS, 7TH AND 8TH FLOOR,
Location: High
Court of INDUSTRIAL LAYOUT, KORMANGALA, 7 TH BLOCK,
Karnataka
BANGALORE - 560 095.
REP. BY ITS DIRECTOR
...RESPONDENT
(BY SRI. SUDHAKAR G V., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 25.03.23 MARKED AS ANNEXURE-A, PASSED BY THE
XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
BANGALORE (CCH NO. 18) IN O.S NO. 6411 OF 2011 ALLOWING
INTERLOCUTORY APPLICATION NOS.20 AND 21 FILED BY THE
RESPONDENT AND ETC.
-2-
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WP No. 8601 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner, defendant in O.S.No.6411/2011 on the
file of the LXXXIV Additional City Civil and Sessions Judge
(CCH-85) Bengaluru, is before this Court challenging the
order dated 25.03.2023, allowing I.A.Nos.20 and 21 recalling
DW.1 for further cross-examination by the respondent-
plaintiff.
2. Heard Sri. Abhinay.V., learned counsel for
Smt. Maneesha Kongovi, learned counsel for the petitioner-
defendant and Sri. Sudhakar.G.V., learned counsel for the
respondent-plaintiff. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit
that the suit of the respondent-plaintiff is for judgment and
decree against the defendant to pay to plaintiff a sum of
Rs.27,55,92,150/- with cost. Learned counsel further
submits that after completion of trial, when the matter was
posted for arguments, the respondent-plaintiff filed
I.A.Nos.20 and 21 under Section 151 of CPC and under
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Order 18 Rule 17 of CPC, to reopen the stage and seeking
permission to further cross-examine DW.1. Plaintiff cross-
examined DW.1 extensively on all aspects and plaintiff was
also aware of Exs.C1 and C2, when the respondent-plaintiff
cross-examined DW.1. It is submitted that the reason to
recall DW.1 for further cross-examination is stated at
Paragraph No.6 of the affidavit, which would state that the
respondent-plaintiff intends to cross-examine DW.1 on
Exs.C1 and C2 respectively to establish that the plaintiff is
entitled for 75% out of the amount paid by BBMP to the
defendant. Learned counsel further submitted that at the
stage of arguments, the trial Court could not have permitted
further cross-examine DW.1, that too when respondent-
plaintiff had cross-examined DW.1 on all aspects of the
matter. In that regard, learned counsel also takes through
the Court to the deposition and cross-examination portion of
DW.1, which is placed on record. Thus, he prays for allowing
the writ petition and to set aside the impugned order.
4. Per contra, learned counsel for the respondent
would submit that the trial Court rightly permitted the
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respondent-plaintiff to further cross-examine DW.1. Learned
counsel further submits that Exs.C1 and C2 were marked
with consent on 03.01.2023 and thereafter no opportunity is
provided to cross-examine DW.1 on those documents. It is
further submitted that it would be necessary to cross-
examine DW.1 on documents Exs.C1 and C2 to establish the
claim of the plaintiff, which are marked subsequent to
completion of trial.
5. In the case of VADIRAJ NAGAPPA
VERNEKAR (D) THROUGH LRS., VS. SHARAD CHAND
PRABHAKAR GOGATE reported in (AIR 2009 SC
1604), the Hon'ble Apex Court has made it clear that
Order XVIII Rule 17 of CPC is not intended to be used to
fill up omissions in the evidence of a witness who has
already been examined. The Hon'ble Apex Court in the
case of BAGAI CONSTRUCTIONS THR. ITS
PROPRIETOR MR.LALIT BAGAI v/s GUPTA BUILDING
MATERIAL STORE reported in ((2013) 14 SCC 1) has
observed that application filed under Order XVIII Rule 17
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of CPC cannot be allowed for mere asking and there shall
be compelling and acceptable reasons.
6. Further, the Hon'ble Apex Court in the case of
K.K.VELUSAMY VS. N.PALANISAMY reported in
((2011) 11 SCC 275) has held that where the
application is found to be bonafide and where the
additional evidence, oral or documentary, will assist the
Court to clarify the evidence on the issues and will assist
in rendering justice, and the Court is satisfied that non-
production earlier for valid and sufficient reasons, Court
may exercise its discretion to re-call the witness or permit
fresh evidence. But, if it does so, it should ensure that
process does not become a protracting tactic.
7. A perusal of the affidavit enclosed to
applications filed under Order XVIII Rule 17 of CPC and
under Section 151 of CPC seeking permission to further
cross-examine DW1, it is seen that after marking of Ex.C1
and Ex.C2 on 03.01.2023, respondent/plaintiff had no
opportunity to cross-examine DW1. When Ex.C1 and
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Ex.C2 are marked subsequently, respondent/plaintiff
would be entitled for an opportunity to cross-examine
DW1. It is for the respondent/plaintiff to utilize that
opportunity or not, but when the respondent/plaintiff
specifically seeks opportunity to cross-examine DW1 on
marking of Ex.C1 and Ex.C2 subsequently, the Trial Court
ought to have provided on opportunity to
respondent/plaintiff to cross-examine DW1.
8. Petitioner/defendant was before this Court in
W.P.No.24834/2015 as stated above, challenging
interlocutory order dated 13.04.2015 passed on I.A.No.12
filed under Order XI Rule 14 of CPC directing the petitioner
to produce certain documents as mentioned in the
application. While disposing of the said writ petition, this
Court observed that if the respondent chooses to lead
further evidence because of the documents which are
directed to be produced, petitioner must not only have
right to cross-examine such witness, but also to lead its
own counter evidence. This Court made it clear that when
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documents are produced, other side must have an
opportunity to produce its counter documents and also to
lead evidence and cross-examination.
In the light of the above discussion, there is no merit
in the writ petition and accordingly writ petition stands
dismissed.
The respondent-plaintiff shall cross-examine DW.1
without further delay.
Sd/-
JUDGE
SMJ
