Disposed

Smt Vijaya Dhariwal v. Eerathippaiah

Karnataka HC26 Aug 2014WP/2067/2014

Case brief

AI extract

What is this about?

In writ petitions challenging the Trial Court's refusal to allow recall of witnesses, summoning of bank documents, and further examination of a discharged witness, the High Court held that such procedural decisions lie within the Trial Court's discretion and approval is granted pending the fixed time frame.

What did the court decide?

Petitioners directed to proceed with PW-2 examination by 1.9.2014; permitted to tender further evidence subject to Trial Court's discretion on delay.

Smt Vijaya Dhariwal Vs Eerathippaiah — Civil Procedure and Limitation | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 26^TH DAY OF AUGUST 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION Nos.2067 AND 9253-9254 AND 9256 OF

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2014 (GM-CPC)

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BETWEEN:

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Smt. Vijaya Dhariwal, Wife of Ashok Dhariwal, Aged about 57 years, Resident of No.8/32, Bull Temple Road, Bangalore – 560 004.

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Sri. Ashok Dhariwal, Aged about 61 years, Son of Sri. Suganchand, Residing at No.8/32, Bull Temple Road, Shankarpuram, Bangalore – 560 004.

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…PETITIONERS

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(By Shri. P.D.Surana, Advocate)

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AND:

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Eerathippaiah, Son of Late Chinnanna, Aged about 64 years,

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Krishna Murthy, Son of Era Thippaiah, Aged about 42 years,

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Sri. T. Ramesh, Son of Eerathippaiah, Aged about 36 years,

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Respondents 1 to 3 are Residents of Hosapalya Village, Begur Hobli, Bangalore South Taluk, Bangalore – 560 083.

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Sri. V. Munikrishnappa, Son of R.Venkataswamappa, Aged about 56 years, No.82, Agara Layout, Agara Village, Sarjapura Road, Bangalore – 560 034.

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K.A.Murthy, Son of Late K.P.Annegowda, Aged about 50 years, Residing at Mohini Villa Apartments, No.2F.Q-3, Mohini Villa Road, Langford Town, Bangalore – 560 027.

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…RESPONDENTS

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(By Shri. G.V. Shashi Kumar, Advocate for Respondent Nos. 4 and 5

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Respondent Nos. 1 to 3 are served)

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These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 7.8.2012 vide Annexure-S made on I.A.No.19 in O.S.No.922/2003 connected with O.S.No.541/2003 pending on the file of the Court of Principal Civil Judge (Sr.Dn.) Bangalore Rural District, Bangalore and etc;

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These Writ Petitions coming on for Preliminary Hearing this day, the court made the following:

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O R D E R

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Heard the learned counsel for the petitioners and the

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learned counsel appearing for the respondents.

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The petitioners are the plaintiffs in a suit for

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declaration and for injunction. The suit prayer is to declare certain sale deeds executed by Defendant No.1 to Defendant No.3 in favour of Defendant No.4, as being null and void. It is

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the case of the plaintiff that the plaintiff was an earlier purchaser who had paid the sale consideration by way of Pay Orders, Cheques and Demand Drafts and in the endeavour to

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establish such payments made in favour of Defendants 1 to 3, the petitioner had in the course of examination-in-chief, sought to summon documents from the respective Bankers, namely M/s. Syndicate Bank and M/s. ICICI Bank, (the latter which has taken over Sangli Bank). It transpires that the court below rejected the application and pointed out that it was for the petitioner to obtain certified copies of the requisite documents and produce the same before the Court. Consequently, the petitioner had made representations to the respective Banks to furnish particulars of the purchase of Pay Orders and Demand Drafts from time to time as well as the Account Extract from Sangli Bank, now taken over by ICICI Bank. It transpires that there has been no response in spite of repeated requests. Insofar as the Syndicate Bank is concerned, they had issued an endorsement to state that the documents sought for are of a period for which the Bank has no record, as in the usual course, all such records would be destroyed.

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The petitioner therefore, armed with several copies of letters that had been addressed to ICICI Bank and the endorsement issued by the Syndicate Bank, had filed an application seeking that the witnesses be recalled in order to mark these documents in evidence. The court below has rejected the same. The petitioner is therefore before this Court.

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One other grievance of the petitioner is that a Passbook being in the custody of Defendant No.1 has been disclosed. Defendant No.1 has admitted in the course of his evidence that he is in the possession of the particular Passbook pertaining to his Account of ING Vysya Bank, which Passbook relates to the corresponding period during which payments have been made by the plaintiff and therefore, it was a crucial piece of evidence to establish his case. The court below having rejected the said prayer as well, the petitioner claims that his case is seriously prejudiced, in that, it may be possible at a later point of time for the defendants to canvass that no material has been produced to disclose the records of the respective Bankers through whom

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payments are claimed to have been made since the same are not produced and further that insofar as the defendant having failed to produce the Passbook in spite of a demand and the admitted document not being placed on record, also would require an adverse inference to be drawn which if overlooked at this point

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of time, the same may not be taken into consideration.

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The learned counsel for the respondents on the other

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hand would vehemently oppose the petitions and would seek to justify the reasoning of the court below. It is further pointed out that the suits have been inordinately delayed and it was therefore warranted for this court to have issued a direction, earlier, to dispose of the suit within a time frame and since the same was not complied with, the court has issued further extension of time to complete the proceedings. The extended period also expires on 24.10.2014. In that view of the matter, if the present petitions are considered and if any relief is granted to the petitioner, this would entail further procrastination and delay, which would be counter to the objective of expeditious

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disposal and since not much significance can be placed on the documents which are sought to be produced, the apprehension of the petitioner is exaggerated and need not be a ground to allow the petitions.

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While the counsel for the petitioners would point out

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that the claim of the suits being unnecessarily delayed is incorrect and misleading. The suit is that of the petitioner and he has no intention of delaying the proceedings. On the other hand, if this petition is allowed, the petitioner is ready to tender evidence on the very next date of hearing and would therefore make a fervent plea that the petition be allowed as it would not cause any prejudice to the respondents.

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Given the above facts and circumstances, it should be

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kept in view that the Trial Court is in a most vantageous position to control the proceedings and if in its opinion the documents sought to be produced by the plaintiff were not essential nor necessary for the matter to be adjudicated and that

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it would lead to further delay, it is an order of the Trial Court passed in its discretion. This Court sitting in writ jurisdiction would hardly be in a position to interfere with the exercise of such discretion. However, it is to be noticed that the apprehension of the petitioner may not be entirely misplaced for it is quite possible that at a point of time it could be canvassed that only such documents which are produced and marked in evidence could be taken note of by the Court and in the absence of material documents produced and marked in evidence, the same cannot be urged in support of the plaintiff’s case. In other words, if there are endorsements issued by a Bank to state that there are no records available insofar as the transactions claimed by the plaintiff are concerned, since those documents are not marked in evidence, it ought not to be held against the petitioner. A similar representation to another Banker which has gone without any reply by the concerned Bank would also be such a circumstance.

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Insofar as the Defendant No.1 not having produced the

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Passbook which is admitted by him, it goes without saying that in law, it is possible for the plaintiff to urge that an adverse inference be drawn by virtue of non-production of the admitted document which would have clinched the issue in favour of the petitioner. While this aspect of the matter is to be addressed by the Court at the final hearing, it is not without the power of the Trial Court even at that stage to summon or request any document from the parties to adjudicate upon the matter. When such an exercise of power is available to the Trial Court, it is the power of persuasion of the respective counsel which should prompt the Court either to take any such measure, or to desist therefrom, the exercise of power, however, is not barred in law. With that observation, the petition stands disposed of.

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Insofar as the time frame fixed in disposing of the suit is concerned, it is required that the parties expedite the

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proceedings and the plaintiff himself should not procrastinate or delay the proceedings further.

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Incidentally, the learned counsel appearing for

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Defendants 4 and 5 would point out that the Passbook referred to by the plaintiff has been marked as Exhibit D-12. This the learned counsel for the petitioner disputes and would submit that the Passbook D-12 is a fabricated document and the said defendant cannot be the custodian of the said Passbook. The Passbook is in the possession and custody of Defendant No.1 and it is he who should speak to it.

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Further areas which are under challenge in this petition are with respect to the fact that PW-2 who had been examined in chief and cross-examined and has been discharged, was sought to be recalled. The court had allowed the said application and the petitioner having sought to file an affidavit in evidence by way of a further examination-in-chief, the Trial Court had rejected the same for the reason that the witness

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sought to be further examined in chief ought to be present in person and the evidence could only be oral evidence.

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The learned counsel for the petitioner states that since the witness was not present in Court, he sought time till 3.00 p.m. on that day, to have the witness present in Court. He did in fact appear along with the witness at 3.00 p.m., but to his dismay, he found that the matter had been adjourned and the case had been closed insofar as the plaintiff’s evidence is concerned. It is that which is sought to be questioned in the present petition, as well.

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The learned counsel for the petitioner would submit that the circumstance that the petitioner had been permitted to tender evidence but later, on account of a communication lapse or other circumstance, the court having closed the evidence of the plaintiff, has resulted in a miscarriage of justice. Therefore, there is no injustice caused if the petitioner is placed on terms to complete the evidence of PW-2, which would have been completed if not for the aforesaid circumstance.

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While the learned counsel for the respondents would vehemently oppose this contention and would submit that apart from the court having opined that the witness could only be examined orally, it was evident that the further examination-inchief sought to be tendered by way of affidavit contained several statements which were mischievous in nature, in that, certain admissions which had been made in the earlier examination-in-chief were sought to be covered up and withdrawn which was a further reason that the examination of the witness being permitted would lead to the plaintiff seeking to correct the admissions which have been made to the advantage of the defendants and the plaintiff therefore cannot be permitted to take away that advantage which the defendants have gained and it is one other reason why the application cannot be allowed. Apart from it, the delay as already stated, is further significant circumstance which would not warrant consideration of the petitioner’s claim.

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In the above circumstances, it does appear that the

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court having permitted the petitioner to examine PW-2 further and on account of there being a lapse on the part of the plaintiff in being present in Court when the case was called out, ought not to visit him with the disadvantage of not being able to pursue his endeavour in tendering further evidence through PW-2. The apprehension of the defendants – respondents to the effect that the endeavour is a mischievous one and the plaintiff seeks to correct his stand, in that, there are certain admissions

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which are sought to be retracted and improvements made insofar as other admissions are concerned, is a contention which may not be sustainable. In that, the Rules of Evidence as provided under the Indian Evidence Act, 1872 would provide enough safeguards to any such exercise being carried out. Apart from the court itself preventing any questions being posed to the witness which may lead to such a situation as the defendants fear, it is open for the defendants themselves to

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point out to the Court of any such endeavour on the part of the plaintiffs, which would be contrary to the rules of evidence.

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While the learned counsel for the respondents would further state that notwithstanding the rules of evidence and the power of the court to control the proceedings, it is quite possible that the counsel for the petitioner would then contend that he has been permitted by this Court to tender evidence and the Trial Court would not be in a position to prevent any such evidence being brought on record.

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This is an apprehension which is misplaced. As already stated, it is the Trial Court which is in control of the proceedings and it is well within its power to prevent any mischievous questions being posed in order to improve the case of the plaintiff. If there have been admissions made by the plaintiff in the course of his evidence, it is to the advantage of the defendants that cannot be taken away by an indirect recourse to further examination-in-chief, which the court below

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shall take note of at the time the witness is examined. It is also open for the defendants to point out any such lapses if it should occur. Permission granted by the Trial Court does not imply that the petitioner is given a free rein to tender evidence in the manner that he desires. It is expected of the Trial Court to control the proceedings.

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The further prayer of the petitioner was in an application for summoning the notary who had attested the document dated 16.05.1991.

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It transpires that the Notary was unwell and had requested that he may be permitted to appear before the Court on a later date, at which the Trial Court had rejected such a prayer and the petitioner is aggrieved.

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If there is a document attested by the said Notary, the document would speak for itself and it could be produced and marked in evidence. There is no necessity for the Notary to appear before the court and give his evidence.

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The case is said to be posted on 1.9.2014. On that day,

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the petitioner shall produce PW-2. If the plaintiff is not able to secure the presence of the witness, it is for him to take such steps as may be possible, which the court may permit. However, any such further adjournments shall be keeping in view the time frame fixed by this Court in completing the proceedings in all respects. Therefore, the plaintiff shall fully co-operate in that regard and shall not seek to take advantage of the order of this Court permitting him to examine PW-2. It would be in the discretion of the Trial Court however to decide whether any further progress can be made or not, in the event of delay and requests for adjournment on whatever ground, and to pass such orders as may be warranted with a view to complete the proceedings.

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With that observation, the petitions stand disposed of.

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Sd/JUDGE

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Smt Vijaya Dhariwal v. Eerathippaiah

Case brief

What is this about?

What did the court decide?

Smt Vijaya Dhariwal v. Eerathippaiah

Case brief

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