Karnataka High Court
Mr. Jayakar Jerome vs Kotak Mahindra Bank Ltd on 14 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 24484 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 24484 OF 2023 (GM-CPC)
BETWEEN:
MR. JAYAKAR JEROME
PRINCIPAL SECRETARY
OFFICE OF THE GOVERNOR
OF MAHARASHTRA
RAJ BHAVAN, MUMBAI
MAHARASHTRA STATE
PRESENTLY RESIDING AT
MR. JAYAKAR JEROME
S/O LATE DR. S.N. JEROME
AGED ABOUT 77 YEARS
RESIDING AT NO. 590 A,
IV C BLOCK KORAMANGALA,
Digitally signed BANGALORE - 560 034.
by SUCHITRA M
J
...PETITIONER
Location: High
Court of
Karnataka (BY SRI. PRASHANTH KUMAR D., ADVOCATE)
AND:
1. KOTAK MAHINDRA BANK LTD.,
(FORMELY KNOWN AS THE VYSYA BANK LTD)
A BANKING COMPANUY CONSTITUTED
AND FORMED UNDER THE PROVISIONS OF
THE COMPANIES ACT, 1956
HAVING ITS OFFICE AT
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WP No. 24484 of 2023
NO. 22 MAHATMA GANDHI ROAD
BANGALORE - 560001
REPRESENTED BY ITS
VICE PRESIDENT
2. BANGALORE DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD
KUMARA PARK (WEST)
BANGALORE - 560020
REPRESENTED BY ITS
COMMISSIONER
...RESPONDENTS
(BY SRI VISHWANATH R HEGDE, ADV. FOR C/R1
SRI V.B. SHIVAKUMAR, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO A) CALL FOR
RECORDS IN O.S. NO. 7738/2002 C/W O.S. NO. 9382/2005
PENDING ON THE FILE OF VII ADDL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE (CCH-19); B) ORDER DATED 10/10/2023
(ANNEXURE-A) PASSED BY THE VII ADDL.CITY CIVIL AND
SESSIONS JUDGE, BANGALORE (CCH-19) ON I.A. NO. 13 AND
I.A. NO. 14 IN O.S. NO. 7738/2002 C/W O.S. NO. 9382/2005
AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 24484 of 2023
ORDER
The petitioner, defendant No.2 in O.S.No.7738/2002
clubbed with O.S.No.9382/2005 on the file of VII
Additional City Civil and Sessions Judge (CCH-19)
Bengaluru, is before this Court aggrieved by rejection of
I.A.Nos.13 and 14, filed under Section 151 of CPC
application to reopen the stage of plaintiff evidence and
under Order 18 Rule 17 of CPC praying to permit further
cross-examine of PW.1.
2. Heard Sri. Prashanth Kumar.D., learned counsel
for the petitioner and Sri. Vishwanath.R.Hegde, learned
counsel for the caveator/respondent No.1 as well as
Sri. V.B.Shivakumar, learned counsel for respondent No.2.
Perused the writ petition papers.
3. Learned counsel for the petitioner would submit
that the suit of respondent No.1-plaintiff is for a judgment
and decree for damages in a sum of Rs.84,74,490/- and
for mesne profit. Learned counsel for the petitioner would
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invite attention of this Court to the plaint averments at
Paragraph Nos.22 and 26 and submits that personal
allegations are made against the petitioner who was the
then Commissioner of respondent No.2-BDA. Learned
counsel would further submit that at Paragraph No.22 of
the plaint, it is alleged against the petitioner-defendant
No.2 that he rang up to the Managing Director of the
plaintiff and threatened that he would demolish the
structure in the schedule property by using a Bulldozer
and that the plaintiff has to face consequences. Further,
learned counsel submits that at Paragraph No.26 of the
plaint, the allegation against the petitioner-defendant No.2
is that though the petitioner-defendant No.2 was fully
aware of the fact that the restraint order was in force till
midnight of 25/11/2002 with the sole object of defeating
and frustrating the efforts of the plaintiff from seeking
suitable relief and remedy available, taking law into hands
and scant respect to the order of this Court, with the help
of police squad started to demolish the buildings situated
in the suit schedule. Further, learned counsel would
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submit that evidence of PW.1 was completed in the year
2013. He further submits that the petitioner-defendant
No.2 adopted cross-examination of defendant No.1 and he
had not cross-examined. It is further submitted that the
suit at present is at the stage of evidence of defendant
No.1 and DW.6 is being examined. Learned counsel also
submits that issues were recasted in pursuance to the
order of this Court in W.P.No.23191/2022 dated
07.12.2022.
4. Learned counsel for the petitioner would submit
that with the above fact situation, the petitioner-defendant
No.2 filed I.A.No.13, under Section 151 of CPC, requesting
to reopen the stage and I.A.No.14 under Order 18 Rule 17
of CPC, seeking permission to further cross-examine PW.1.
Learned counsel invites attention of this Court to affidavit
filed in support of the said applications and submits that
the petitioner-defendant No.2 sought to reopen the stage
and seeks permission to cross-examine PW.1 on the
ground that issues are recasted subsequently and after
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recasting of the issue, the parties to the suit ought to have
been given an opportunity to lead their evidence or to
cross-examine the witnesses already examined. Further,
learned counsel submits that as the plaint contains
personal allegations against the petitioner-defendant No.2,
it would be necessary to cross-examine PW.1 on those
documents.
5. Learned counsel for the petitioner would submit
that though PW.1 evidence was completed in the year
2013, the suit has not progressed much and it is at the
stage of defendant No.1 evidence. Evidence of defendant
No.2 is not yet commenced. Learned counsel placing
reliance on the decision in the case of K.K. VELUSAMY
vs. N. PALANISAMY reported in (2011) 11 SCC 275,
submits that the Court in its discretion permit reopening of
evidence and permit cross-examination, if the Court is of
the opinion that such course would be necessary for
proper decision of the dispute involved in the suit. Thus,
he prays for allowing the writ petition.
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6. Per contra, learned counsel Sri.
Vishwanath.R.Hegde, vehemently opposes the prayer of
the petitioner-defendant No.2. Learned counsel would
submit that the applications filed by the petitioner-
defendant No.2 is belated applications. Evidence of PW.1
was completed in the year 2013 itself and petitioner-
defendant No.2 files I.A.Nos.13 and 14 in the year 2023
that too when defendant No.1 evidence is under progress.
Learned counsel further submits that when the petitioner-
defendant No.2 has chosen not to cross-examine and
adopted cross-examination of defendant No.1, without
assigning acceptable reason, could not have sought
permission to cross-examine PW.1 at this stage. Further,
learned counsel submits that the order passed by the trial
Court rejecting I.A.Nos.13 and 14 is well reasoned
discretionary order, which needs no interference. Learned
counsel would submit that the trial Court has come to the
definite conclusion that recasting of issue would not enable
the parties to seek examination or cross-examination of
PW.1. It is further submitted that the present applications
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are filed only to protract the proceedings and for mere
asking, the stage shall not be reopened and petitioner
shall not be given an opportunity to cross-examine PW.1
further. Learned counsel invites attention of this Court to
the order passed by the Division Bench of this Court in
contempt proceedings in CCC.No.1535/2002 dated
28.09.2006 and submits that this Court has come to the
conclusion that the material on record in the contempt
proceedings clearly establish that defendant No.2,
petitioner herein has willfully and deliberately disobeyed
the Court order by causing demolition of the disputed
building. Thus, learned counsel would submit that personal
allegations are made against the petitioner are based on
such finding. Further, learned counsel for the respondent
places reliance on the decision of the Hon'ble Apex Court
in the case of VADIRAJ NAGGAPPA VERNEKAR (DEAD)
THROUGH LRS. vs. SHARADCHANDRA PRABHAKAR
GOGATE reported in (2009) 4 SCC 410 and decision in
the case of G.R. SRINIVAS REDDY ALIAS BABU vs. SMT.
REKHA RAI HAMILTON AND OTHERS reported in 2019
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(4) KCCR 3738, to contend that the application filed
under Order 18 Rule 17 of CPC shall not be allowed in a
routine manner and said power shall be exercised
sparingly in an appropriate case. Thus, he prays for
dismissal of the petition.
7. Learned counsel Sri. V.B.Shivakumar for
respondent No.2 i.e., defendant No.1 before the trial
Court, would submit that the trial Court ought to have
provided an opportunity to the defendants to cross-
examine PW.1 on recasted issue, which casts burden on
the plaintiff. Thus, he supports the submission of the
learned counsel for the petitioner.
8. Having heard the learned counsels for the
parties and on perusal of the writ petition papers, I am of
the view that the trial Court ought to have provided one
opportunity to the petitioner-defendant No.2 to further
cross-examine PW.1 for the following reasons:
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9. The suit of respondent No.1-plaintiff is for
damages and for mesne profit in respect of demolition of
'A' and 'B' schedule property. There is no dispute with
regard to the fact that, the evidence of PW.1 was
completed in the year 2013. It is also an admitted fact
that the petitioner-defendant No.2 adopted cross-
examination of defendant No.1 and he has not
independently cross-examined PW.1. Thereafter, in terms
of the order dated 07.12.2022 in W.P.No.23191/2022,
issue No.5 was recasted as follows:
"Whether plaintiff proves that defendant No.2
is personally liable to pay claim made by plaintiff?"
Earlier, the burden was casted on defendant No.2 to prove
that he is not personally liable to pay the claim made by
the plaintiff, but subsequently issue was recasted and
burden is casted on the plaintiff to prove that the
petitioner-defendant No.2 is personally liable to pay the
claim made by the plaintiff.
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10. The petitioner-defendant No.2 filed I.A.Nos.13
and 14 under Section 151 of CPC, to reopen the stage for
plaintiff's evidence and also under Order 18 Rule 17 of CPC
to recall PW.1 for further cross-examination respectively.
The affidavit enclosing the application would disclose that
the petitioner-defendant No.2 intends to further cross-
examine PW.1 on the aspect of personal allegations made
against him in the plaint Paragraph Nos.22 and 26.
Further, learned counsel for the petitioner-defendant No.2
also submitted that the petitioner-defendant No.2 had not
been given any opportunity to cross-examine PW.1 on
recasting of issue as to whether the plaintiff proves that
defendant No.2 is personally liable to pay claim of the
plaintiff.
11. Learned counsel for the petitioner-defendant
No.2 as well as learned counsel for respondent No.1-
plaintiff places reliance on the decision of the
K.K. VELUSAMY case (supra) to submit that the defendant
ought to be given an opportunity to further cross-examine
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PW.1 and to submit that the petitioner-defendant shall not
be given opportunity to further cross-examine PW.1 for
mere asking respectively. The Hon'ble Apex Court in the
case of K.K. VELUSAMY (supra) has made it clear that
Order 18 Rule 17 of CPC enables the Court at any stage of
a suit to recall any witness who has been examined and
put such questions to him as it thinks fit. Further, it is
observed that the power is discretionary and should be
used sparingly in appropriate cases and the power to recall
any witness under Order 18 Rule 17 of CPC can be
exercised by the Court either on its own motion or on an
application filed by any of the parties to the suit
requesting the Court to exercise the said power. Relevant
paragraph Nos.9 and 19 reads as follows:
"9. Order 18 Rule 17 of the Code enables the
court, at any stage of a suit, to recall any witness
who has been examined (subject to the law of
evidence for the time being in force) and put such
questions to him as it thinks fit. The power to recall
any witness under Order 18 Rule 17 can be exercised
by the court either on its own motion or on an
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application filed by any of the parties to the suit
requesting the court to exercise the said power. The
power is discretionary and should be used sparingly
in appropriate cases to enable the court to clarify any
doubts it may have in regard to the evidence led by
the parties. The said power is not intended to be
used to fill up omissions in the evidence of a witness
who has already been examined. (Vide Vadiraj
Naggappa Vernekar v. Sharadchandra Prabhakar
Gogate2.)
19. We may add a word of caution. The power
under Section 151 or Order 18 Rule 17 of the Code is
not intended to be used routinely, merely for the
asking. If so used, it will defeat the very purpose of
various amendments to the Code to expedite trials.
But 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 was for
valid and sufficient reasons, the court may exercise
its discretion to recall the witnesses or permit the
fresh evidence. But if it does so, it should ensure
that the process does not become a protracting
tactic. The court should firstly award appropriate
costs to the other party to compensate for the delay.
Secondly, the court should take up and complete the
case within a fixed time schedule so that the delay is
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avoided. Thirdly, if the application is found to be
mischievous, or frivolous, or to cover up negligence
or lacunae, it should be rejected with heavy costs."
12. Learned counsel for respondent No.1 also
places reliance on the decision of the VADIRAJ NAGGAPPA
case (supra) to submit that the power under Order 18 Rule
17 of CPC is to be sparingly exercised in an appropriate
case and not to be allowed to fill up the lacuna.
13. Keeping in mind the above principles laid down
by the Hon'ble Apex Court, the facts of the present case
are to be examined. In the instant case, the petitioner-
defendant No.2 has sought for recalling PW.1 so as to
enable him to further cross-examine on two grounds,
firstly i.e., issue No.5, which is recasted on 17.11.2022
after closing of PW.1 evidence. Secondly on the ground
that the petitioner-defendant No.2 has not cross-examined
PW.1 on serious allegations made against the petitioner-
defendant No.2 in the plaint. Though this Court in
CCC.No.1535/2002 dated 28.09.2006 has observed that
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the evidence on record and document produced by the
complainant clearly establishes that respondent No.2 i.e.,
petitioner-defendant No.2 had willfully, deliberately
disobeyed the Court order by causing demolition of the
disputed building, has also observed that respondent No.2
i.e., petitioner-defendant No.2 had no personal interest in
demolishing the building, had an impression that by
demolishing the building and re-possessing the property,
the public confidence will be restored. In the above back
ground, the petitioner-defendant No.2 would be entitled to
an opportunity to cross-examine on the serious allegations
made against defendant No.2 in the plaint at Paragraph
Nos.22 and 26. Moreover, issue No.5 has been recasted in
terms of the order passed by this Court in
W.P.No.23191/2022 subsequent to closing of PW.1
evidence. Therefore, the petitioner-defendant No.2 needs
to be given an opportunity to prove his case that he is not
liable to pay damages personally. If the petitioner-
defendant No.2 is not given an opportunity to cross-
examine PW.1, further, in the above circumstances,
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defendant No.2 would suffer irreparable injury. Hence, the
following:
ORDER
(i) Writ petition is allowed.
(ii) Impugned order passed in O.S.No.7738/2002
clubbed with O.S.No.9382/2005 on the file of
VII Additional City Civil and Sessions Judge
(CCH-19) Bengaluru, is set aside.
(iii) I.A.No.13 under Section 151 of CPC and
I.A.No.14 under Order 18 Rule 17 of CPC are
allowed.
(iv) The petitioner-defendant No.2 shall be
permitted to cross-examine PW.1 further after
completion of evidence of defendant No.1 on
payment of cost of Rs.10,000/- payable to the
witness-PW.1.
Sd/-
JUDGE
SMJ/
