Dismissed

Shri.Shrishail S/O Shivamurtayya Dhupadalmath v. Shri.Mahaning S/O Appanna Bangennavar

Karnataka HC5 Nov 2018WP/106382/2018

Case brief

AI extract

What is this about?

This court dismissed a writ petition filed to set aside an order allowing a defendant to file a detailed Written Statement and record evidence at a belated stage in a suit for specific performance, where the trial court had concluded hearing and reserved judgment.

What did the court decide?

The writ petition was dismissed as it was found to be devoid of merits; the order allowing the application in the lower court was upheld.

Shri.Shrishail S/O Shivamurtayya Dhupadalmath Vs… — Specific Performance | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2018

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BEFORE

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THE HON’BLE MR. JUSTICE B.A. PATIL

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WRIT PETITION NO.106382 OF 2018 (GM-CPC)

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BETWEEN:

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SHRI.SHRISHAIL S/O SHIVAMURTAYYA DHUPADALMATH, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: KONNUR, TQ: GOKAK, DIST: BELAGAVI.

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... PETITIONER

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(BY SRI.RAVIRAJ C. PATIL, ADVOCATE)

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AND

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SHRI.MAHANING S/O APPANNA BANGENNAVAR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: KONNUR, TQ: GOKAK, DIST: BELAGAVI.

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... RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED ON I.A.NO.2 BY THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK IN O.S.NO.219 OF 2017 DATED:22.06.2018 AT ANNEXURE-"A" AND THEREBY I.A.NO.2 MAY KINDLY BE REJECTED.

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THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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The present writ petition has been filed by the petitioner praying this Court to set aside the order passed on I.A.No.2 by the I Additional Senior Civil Judge, Gokak in O.S.No.219 of 2017 dated 22.06.2018.

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I have heard the learned counsel for the petitioner.

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It is the case of the petitioner that he filed O.S.No.219 of 2017 for the Specific Performance of Contract and Permanent Injunction against the respondent-defendant by virtue of an Agreement of Sale dated 15.05.2014. It is further submitted that defendant on 03.04.2018 filed I.A.No.2 under Order VIII Rule 10 read with Section 151 of C.P.C. seeking permission to file detailed Written Statement where the matter was posted for Judgment for the reasons stated

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in the accompanying affidavit the Court below after hearing both sides have allowed I.A.No.2 filed by defendant by imposing cost of Rs.300/-. Being aggrieved by the same plaintiff-petitioner is before this Court.

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It is the contention of the learned counsel for

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the petitioner that the respondent has been given sufficient opportunity to file his Written Statement and also to cross-examine the witnesses. Defendant do not avail the opportunity and when the matter was posted for Judgment, at that time, he has filed I.A.No.2 at belated stage. He further submitted that in view of the decision of this Court in Rabiya Bi Kassim M. v. The Country Wide Consumer Financial Service Ltd., reported

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in ILR 2004 KAR 2215, when the case is posted for Judgment, no permission can be granted to the defendant to file any application and no application can be entertained in this behalf. On this ground he

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prayed to allow the writ petition.

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I have carefully and cautiously gone through

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the submission made by the learned counsel for the petitioner and records. I have also gone through the decision quoted by the learned counsel for the petitioner. It is not in dispute that the petitionerplaintiff filed a suit for Specific Performance and Permanent Injunction and the defendant has not filed Written Statement. When the matter has been posted for Judgment, at that time, an application has filed under I.A.No.2. In the decision relied above by the learned counsel for the petitioner, the coordinate bench of this Court in paragraph Nos.9 and 10 observed as under :

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“9. On consideration, we are of the opinion that once the matter has been finally heard and posted for judgment, as held by the Supreme Court in Arjun Singh’s case (supra) nothing is required to be done by the Court except to pronounce the judgment, and therefore the

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decision in Laxminarayan Enterprises case is not helpful. Admittedly, Clause (4) of Order 18 Rule 2, of CPC has been deleted and therefore the respondent-plaintiff cannot take advantage of Laxmin Arayan’s case in the facts of the given case. Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are governed by CPC. The CPC has been amended from time to time. Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7.2002. In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant’s evidence and ultimately the case was heard and reserved for judgment on 20.06.2001. In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.

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As discussed above, in the facts of the case on hand, we are of the opinion that making an interlocutory application to reopen the case and record further evidence after the matter is reserved for pronouncement of judgment is not permissible. We answer the question referred for decision by holding that no application can be filed after the final arguments have been heard and the matter is posted for judgment. The Single Bench decision of this Court in Laxminarayan Enterprises v. Laxminarayan Textile is not applicable in view of the decision of the Supreme Court and as stated above.”

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In the said Judgment, it has been observed that, when the matter has been finally heard and posted for Judgment, in order to avoid delay no application can be heard, after the final arguments that the ratio laid down in the said decision. The ratio is not applicable to the facts of the present case on hand.

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Be that as it may, by going through the records it indicates, defendant has not filed any Written

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Statement and even the plaintiff has not been crossexamined. If the defendant has not been given any opportunity, then under such circumstances, it is going to put greater hardship to the defendant. Even assuming that, if, at this stage, if the application is rejected and if the suit of the plaintiff is decreed and appeal will be going to be preferred by the defendant and there also, the similar grounds are going to be urged and ultimately matter will be remanded back to

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the Court below with a direction of giving an opportunity to file Written Statement and for crossexamination and thereafter defendant has to give the evidence and thereafter the same exercise has to be made and Judgment has to be pronounced. In the decision quoted by the learned counsel for the petitioner it has been observed that, in order to cut short the delay in various levels in disposal of the civil case CPC has been amended. If the similar principle is applicable to the facts of the present case on hand, it is going to avoid

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the delay. Hence, petition is dismissed as devoid of

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merits.

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Sd/ JUDGE

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Ckk/-

Shri.Shrishail S/O Shivamurtayya Dhupadalmath v. Shri.Mahaning S/O Appanna Bangennavar

Case brief

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Shri.Shrishail S/O Shivamurtayya Dhupadalmath v. Shri.Mahaning S/O Appanna Bangennavar

Case brief

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What did the court decide?

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