Karnataka High Court
Ashwini Kumar S vs Mrs Chitra Kylas on 4 July, 2024
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WP No. 23536 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.23536 OF 2022 (GM-CPC)
BETWEEN:
ASHWINI KUMAR S
S/O LATE CHINTAMANI SADANAND
AGED ABOUT 52 YEARS,
RESIDING AT FLAT NO.5,
KALPASREE APARTMENT,
II FLOOR, DEVANATHAN STREET,
MANDAVELI CHENNAI,
PRESENTLY RESIDING AT
FLAT NO.G2, GROUND FLOOR,
SAPTHAGIRI APARTMENT, NEW NO.2
OLD NUMBER 22/23, SUNDARRAJAN STREET,
ABHIRAMAPURAM, CHENNAI-600018
...PETITIONER
(BY SRI. AKSHAYA B.M., ADVOCATE)
Digitally
signed by AND:
MEGHA
MOHAN
MRS. CHITRA KYLAS
Location:
HIGH COURT D/O LATE CHINTAMANI,
OF AGED ABOUT 57 YEARS,
KARNATAKA RESIDING AT
OLD NO.38, NEW NO.98,
BAZULLAHA ROAD, T. NAGAR,
CHENNAI, NOW CAMPED AT
BENGALURU-600017.
...RESPONDENT
(BY SRI. B. JANARDHANA, ADVOCATE)
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WP No. 23536 of 2022
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 17.11.2022 ANNEXURE-A PASSED BY THE
LEARNED LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE (CCH-63) REJECTING THE I.A NOS.8 AND 9 IN
O.S. NO.6315/2015 CONSEQUENTLY ALLOW THE I.A NOS.8
AND 9 FILED BY THE PETITIONER BY PERMITTING HIM TO
ADDUCE ADDITIONAL EVIDENCE IN OS.NO.6315/2015.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order dated 17.11.2022 passed on I.A.
Nos.8 and 9 in O.S. No.6315/2015 on the file of LXII Additional
City Civil and Sessions Judge, Bengaluru, the defendant is
before this Court.
2. The plaintiff and the defendant are sister and the
brother. The suit is filed for partition and separate possession
of the plaint schedule property. After the evidence on the side
of the defendant is completed and when the matter is posted
for arguments and after the arguments of the plaintiff are
concluded, the present I.As., i.e., I.A.Nos.8 and 9 are filed by
the defendant. I.A. No.8 is filed to permit the defendant to
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reopen the case and to adduce evidence and I.A. No.9 is filed
to summon the witness of a power of attorney. Both the
applications came to be dismissed by the Trial Court. The Court
observed that on perusal of the order sheet dated 29.07.2022,
it disclosed that both the counsels submitted their arguments
and case was posted for furnishing citations, then again counsel
for the defendant filed the said I.As., and counsel for the
defendant after conclusion of the evidence, as an afterthought,
he had filed the aforesaid I.As. The Trial Court on perusal of the
I.As., and also in the light of the ratio laid down by this Court in
the case of Smt. Pillamma and others v. Smt.
Munithayamma and Others1, dismissed the applications
holding that there are no reasonable grounds to allow the
same. Aggrieved thereby, the defendant is before this Court,
3. Learned counsel for the petitioner - defendant
submits that there is no dispute about the fact that the
property is the self acquired property of the father and he had
executed a general power of attorney dated 26.05.2009 in
favour of his family friend by name Sri N. Jayaraman as he was
staying at Chennai and property was situate at Bangalore and
2016(1) KCCR 337
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because of his old age, he was not able to travel to Bangalore.
Thereafter, the said Sri N. Jayaraman at the instance of the
father had executed a registered gift deed in favour of the
defendant on 02.06.2009. These documents were disputed by
the plaintiff and it is stated that the said Sri N. Jayaraman is
not the family friend and as the father was suffering from
dementia and he was not in a fit state of mind, these
documents have come into existence. Annexure 'K' indicates
that an additional issue was framed by the Trial Court in the
year 2019 and issue No.2 was recasted by the Trial Court in the
year 2022. The additional issue that was framed in the year
2019 is as follows:
"Whether the defendant proves that he is absolute
owner in possession of suit schedule property by
virtue of gift deed dated 02.06.2009?".
The issue No.2 that was recasted in the year 2022 is as follows:
"Whether plaintiff further proves that her father
late Chintamani Sadanand was not in fit state of
mind to execute an alleged GPA dated 26.05.2009
in favour of N. Jayaraman?".
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4. Learned counsel submits that after the issues were
recasted, in the next month, the defendant filed the
applications - I.A Nos.8 and 9. It is stated that during the
COVID-19 pandemic, as the witness was in Madras, his
presence could not be secured. As such, they could not
examine him and it is submitted that the Court has to look at
the substantial justice and interest of the parties. He submits
that there is no straitjacket formula that any application that is
filed for adducing evidence when the matter is posted for
arguments cannot be entertained. He has relied upon the
judgment of the Hon'ble Apex Court in the case of
K.K.Velusamy v. N. Palanisamy2 wherein the Court had
considered the scope of Order XVIII Rule 17 of the Code of Civil
Procedure, 1908 and observed that ideally, the recording of
evidence should be continuous, followed by arguments, without
any gap. The Courts should constantly endeavour to follow such
a time schedule. The amended Code expects them to do so. If
that is done, applications for adjournments, reopening,
recalling or interim measures could be avoided. The more the
period of pendency, the more the number of interlocutory
2011(11) SCC 275
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applications which in turn add to the period of pendency.
However, in a particular facts of the case i.e., in the said case,
both the High Court as well as the Trial Court had mechanically
dismissed the application only on the ground that the matter
was already at the stage of final arguments and the application
would have the effect of delaying the proceedings and the
Courts have not applied their mind to the question whether
such evidence would be relevant and whether the ends of
justice require permission to let in such evidence and
accordingly, interfered with the order passed by the Trial Court
which was affirmed by the High Court and permitted the party
to adduce further evidence. Basing on this judgment, learned
counsel submits that this is a case where the evidence of
witness to the power of attorney was required and in the
interest of the parties, it is necessary that the writ petition has
to be allowed and I.A. Nos.8 and 9 are also to be allowed.
5. Learned counsel appearing for the respondent -
plaintiff submits that the Court below had rightly dismissed the
applications. He submitted that after the issues were recasted,
after the trial was concluded and when the matter was posted
for arguments, arguments were advanced with regard to the
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fact that none of the witnesses to the general power of attorney
were examined and after they quoting the judgment of the
Hon'ble Apex Court as well as the judgment of the High Court
which were referred to in the order impugned, then as an
afterthought, the present applications are filed by the
defendant. Learned counsel submits that if applications in this
manner are allowed, there would be no end to the litigation.
The party cannot be permitted to take advantage and it is
nothing but pure abuse of the process of law and these kind of
applications cannot be allowed and the Trial Court had rightly
dismissed I.A. Nos.8 and 9 filed by the defendant to reopen the
stage of the case and recall and summon the witness.
6. Having heard the learned counsels on either side,
perused the material on record.
7. The suit is of the year 2015 and it appears that two
issues were recasted by the Trial Court in the year 2019 and in
the year 2022. The matter was posted for arguments and the
defendant has though such a fact he has pleaded, but he has
failed to examine the said witness. As rightly pointed out by
the learned counsel for the respondent that there is a delay on
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the part of the petitioner in filing applications I.A. Nos.8 and 9.
At the same time, just because on the ground of the delay
itself, this Court cannot dismiss the applications without looking
into the relevancy of the same. However, for the delay and for
the latches on the part of the petitioner - defendant, cost
should be imposed on him. In the facts and circumstances of
the case, this Court deems it appropriate to set aside the order
impugned.
Accordingly, the following:
ORDER
(1) The order dated 17.11.2022 passed on I.A.
Nos.8 and 9 in O.S. No.6315/2015 on the file
of the LXII Additional City Civil and Sessions
Judge, Bengaluru, is set aside and
consequently, I.A. Nos.8 and 9 are allowed on
the condition that the petitioner - defendant
shall pay an amount of Rs.10,000/- (Rupees
Ten Thousand only) as cost to the respondent -
plaintiff within a period of two weeks from the
date of receipt of a certified copy of this order.
(2) Accordingly, the writ petition is allowed.
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(3) All I.As. in this writ petition shall stand
closed.
SD/-
JUDGE
