Allowed

T.V. Mohan v. International Shiradi Sai Foundation

Karnataka HC11 Nov 2020WP/42445/2015

Case brief

AI extract

What is this about?

This High Court allowed a writ petition under Article 227 seeking to set aside an order rejecting a request to lead evidence under Order XVIII Rule 17 of CPC. Considering the matter's pendency since 2008, the court allowed the application subject to payment of costs and strict adherence to future procedural rules.

What did the court decide?

The order dated 07.09.2015 is set aside; the application under Order XVIII Rule 17 of CPC is allowed subject to payment of Rs.2,500 costs.

T.V. Mohan Vs International Shiradi Sai… — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2020 BEFORE

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THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.42445 OF 2015 (GM-CPC)

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BETWEEN:

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T.V.Mohan, S/o. Late Venkataswamy, Aged about 48 years, R/at No.83, 3^rd Cross, Srinivasanagar, BSK 3^rd Stage, Katriguppe Main Road, Bangalroe-560 085. ... Petitioner

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(By Sri. Vijaykumar S., Advocate)

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AND:

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Internationa Shiradi Sai Foundation Rep: Its Founder Member Guruji B.R.Ramaprasad, S/o. B.Ramachandra, Aged about 60 years, R/ of Behind Kamakshipalya, Police Station, Magadi Road, Bangalroe-560 0079. … Respondent (By Sri. R.P.Somashekaraiah, Advocate)

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This Writ Petition is filed under Article 227 of the Constitution of India praying to call for records in I.A.NO.13 and set aside the order dated 07.09.2015 vide Annexure-F and allow the application under 18 Rule 17 of

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CPC, vide Annexure-E in O.S.No.3413/08 CCH.40 Bangalore and etc.

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This writ petition coming on for ‘ preliminary hearing in 'B' group, this day through video conference, the court made the following:

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ORDER

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The petitioner is before this Court seeking for a Certiorari to set aside the order dated 07.09.2015 rejecting the application filed by defendant No.3petitioner herein under Order XVIII Rule 17 of CPC in O.S.NO.3413/2008 pending on the file of the City Civil and Sessions Judge, Bengaluru.

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The respondent being the plaintiff had filed a suit seeking for injunction against the petitioner and certain others. On 03.09.2015, the evidence of petitioner-defendant No.3 was taken as Nil and the matter was posted for arguments on 07.09.2015. On 07.09.2015 itself, defendant No.3-petitioner herein filed an application under

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Order XVIII Rule 17 of CPC seeking for recall of the order dated 03.09.2015 and for permission to lead the evidence. The said application came to be rejected by the trial Court holding that there are no grounds made out in relation thereto and sufficient opportunity had been granted to defendant No.3. Being aggrieved by the same, the petitioner is before this Court seeking to set aside the said order and to allow the application under Order XVIII Rule 17 of CPC. On account of this Court having granted order of stay, there are no further proceedings in the suit.

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Sri. Vijaykumar. S, learned counsel for the petitioner submits that on the very next day after the order holding the evidence of defendant no.3 as Nil, an application came to be filed on 07.09.2015 establishing bonafides on part of the petitioner. The reason why the petitioner could

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not lead the evidence on that particular day was since he had been deputed to Delhi to attend a conference.

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Sri. R.P.Somashekaraiah, learned counsel for the respondent opposes the above petition contending that even prior to the said date there were several adjournments granted based on the petitionerdefendant No.3.

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Heard Sri. Vijaykumar. S, learned counsel for the petitioner and Sri. R.P.Somashekariah, learned counsel for the respondent.

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Having perused the document and the order sheet, the relevant date which has to be considered by this Court is 03.09.2015, when the petitioner sought for time to lead evidence on the ground that the petitioner was in Delhi, which was refused and the evidence of defendant No.3 was

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taken as Nil. Immediately thereafter, on

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07.09.2015 an application under Order XVIII Rule 17 of CPC came to be filed which was dismissed on 07.09.2015 itself. Though costs had been imposed earlier and there was default on the part of defendant No.3 in leading evidence, I am of the considered opinion that matter being pending from the year 2008, the petition can be allowed by imposing certain terms on the petitioner.

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As such, the order dated 07.09.2015 passed by the City Civil and Sessions Judge in O.S.NO.3413/2008 and the application filed under Order XVIII Rule 17 of CPC is set aside. The application under Order XVIII Rule 17 of CPC is allowed subject to payment of cost of Rs.2,500/-.

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The submission made by Sri. Vijaykumar. S, learned counsel for the petitioner-defendant No.3

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that he would lead evidence on the next date when the matter is posted before the trial Court without seeking for any adjournment is accepted. The affidavit in lieu of evidence on behalf of the defendant No.3 shall be filed on the next date. A copy of the affidavit in lieu of the evidence shall be furnished by defendant No.3 to the counsel for the plaintiff fifteen days in advance to the date on which the matter is listed. The documents relied upon by defendant No.3 would also be marked on that date and if the plaintiff is ready to cross examine the said defendant's witness, the witness will present himself for cross examination on that date without seeking for any adjournment. Considering the matter is of the year 2008, the trial Court is requested to expeditiously dispose of the matter.

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9. With the above observations, the writ petition is

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allowed.

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Sd/JUDGE

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T.V. Mohan v. International Shiradi Sai Foundation

Case brief

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T.V. Mohan v. International Shiradi Sai Foundation

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