Dismissed

Smt Hema v. Smt Sheela

Karnataka HC2 Mar 2021WP/4349/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka held that it was not inclined to interfere with the lower court's interlocutory order under Article 227 supervision. The court permitted the production of a belated bank statement, awarded costs to the petitioner, but allowed the petitioner to cross-examine regarding the payment's connection to the agreement.

What did the court decide?

The writ petition fails; first respondent-plaintiff to pay Rs.5,000/- to the petitioner within two weeks.

Smt Hema Vs Smt Sheela — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 2^ND DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.4349 OF 2021(GM-CPC)

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BETWEEN:

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SMT HEMA, W/O LATE BABU REDDY, AGED ABOUT 42 YEARS, R/O NO.41, 1^ST CROSS, VEERAPPA REDDY LAYOUT, BEHIND SYNDICATE BANK, BENGALURU-560043. REPRESENTED BY HER GPA HOLDER, SRI SASIDHAR REDDY, S/O VENKATA REDDY, AGED ABOUT 48 YEARS, R/O NO.13, F-1, VINTAGE PRIME, APARTMENTS, 4^TH MAIN ROAD, 4^TH BLOCK, HBR LAYOUT, BENGALURU-560 043

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...PETITIONER

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(BY SRI. SHANMUKHAPPA, ADVOCATE)

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AND:

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SMT SHEELA, W/O SHUBAKAR, AGED ABOUT 37 YEARS, R/O DEVARABISANAHALLI VILLAGE, VARTHU HOBLI, BENGALURU EAST TALUK-560 076.

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SRI VENKATASWAMY REDDY, S/O LATE MUNISWAMY REDDY, AGED ABOUT 70 YEARS, R/O VENKATASWAMY REDDY BUILDING, BARKATH VILL NURSERY, BANK AVENUE, BANASWADI, BENGALURU-560 037.

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SRI SURESH, S/O LATE MUNISWAMY REDDY, AGED ABOUT 55 YEARS,

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R/O NO.39(159),1^ST FLOOR, 1^ST B MAIN, 1^ST BLOCK, JAKKASANDRA EXTENSION, KORAMANGALA, BENGALURU-560 034.

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SRI K M RAJASHEKAR, S/O K T MUNISWAMY REDDY, AGED ABOUT 52 YEARS, R/O DODDAKANNAHALLI VILLAGE, CARLMELARAM POST, BENGALURU-560 077.

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SRI M N VENKATESHWARA, S/O D MUNI REDDY, AGED ABOUT 46 YEARS, R/O DODDAKANNAHALLI VILLAGE, CARLMELARAM POST, BENGALURU-560 077.

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SRI AMBALI YOGESH, S/O AMBALI KOTRAPPA, AGED ABOUT 50 YEARS, PRESENTLY R/AT NO.106, KOTTUR ROAD, HARAPPANAHALLI TALUK, DAVANAGERE DISTRICT-571 112.

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SRI B KARUNESH, S/O LATE B M MUDDAIAH, AGED ABOUT 54 YEARS, NO.607, 15^TH CROSS, 6^TH PHASE, J P NAGAR, BENGALURU-560078 ALSO AT ADARSHA DEVELOPERS, NO.10, VITTAL MALYA ROAD, BENGALURU-560 001.

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… RESPONDENTS

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(BY SRI.ANOOP HARANAHALLI, ADVOCATE FOR SRI. YESHU MISHRA, ADVOCATE FOR C/R1; (CP NO.2579/2021))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 16.02.2021 PASSED BY THE LEARNED 74^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, CCH NO.75, BANGALORE, IN O.S.NO.27451/2009 ON I.A.NOS.1 TO 3/21 VIDE ANNEXUREA AND CONSEQUENTLY, DISMISS/REJECT IA NO.1 TO 3/21 FILED BY THE R-1 VIDE ANNEXURE-D TO F.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioner being the first defendant in a specific performance suit in O.S.No.27451/2009 is knocking at the doors of Writ Court for assailing the order dated 16.02.2021 a copy whereof is at Annexure-A whereby the learned LXXIV Additional City Civil Judge, Mayo Hall Unit, CCH-75, Bengaluru, having favoured respondentplaintiffs’ applications in IA No.1/2021 filed under Section 151, IA No.2/2021 filed under Order VII Rule 14(3) and also IA No.3/2021 filed under Order XVIII Rule 17 of CPC, 1908 has recalled the order dated 11.04.2019 and thereby permitted the respondent-plaintiffs to produce the Bank Statement of Account and mark it as an exhibit.

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After service of notice, the contesting first respondent-plaintiff having entered Caveat through his counsel, vehemently opposes the writ petition making submission in justification of the impugned order and the grounds on which it has been predicated.

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Having heard the learned counsel for the parties and having perused the petition papers, this Court is not inclined to grant indulgence in the matter inasmuch as, the impugned order is apparently a product of exercise

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of discretion and such orders generally are not deeply examined by the Writ Court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 vide Sadhana Lodh Vs. National Insurance Co. Ltd., (2003) 3 SCC 524.

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The agreement to sell on which the suit is founded is dated 18.03.2004 and Issue No.1 that has been framed reads:- “Whether the Plaintiff proves that the 1^st Defendant husband has entered into an agreement to sell the suit schedule property to the Plaintiff for valuable consideration of Rs.10,50,000/- on 18.03.2004 and the Plaintiff has paid the entire sum in cash?”; the Bank Statement of Account which is dated 27.02.2004 reflects the payment of Rs.1,50,000/- and thus it stands in a close proximity of time with the said agreement and therefore apparently is admissible under the doctrine of res gestae enacted in Section 6 of the Indian Evidence Act, 1872.

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The document in question ought to have been produced at the earliest point of time is true; however the pragmatics of legal battles at times warrant elasticity & flexibility being shown so that the truth is established in due adjudication and therefore the delay brooked needs to

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be condoned if a plausible explanation is offered and in this case, apparently it is; whatever little prejudice that has been arguably occasioned to the petitioner by the belated production by the document in question can be compensated by awarding costs; it is tritely said by the sages of law that there is no prejudice to a litigant which cannot be compensated in terms of costs vide Bowen LJ. in

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Cropper Vs. Smith, (1884) 26 Ch.D 700 .

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The last contention of the petitioner that there

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is absolutely no plea as to the alleged payment and therefore, the document should not be permitted to be produced inasmuch as, no amount of evidence will aid adjudication in the absence of plea, is bit difficult to countenance; ideally speaking, the presence of plea on record is a sine qua non for production of the evidence, is true; however, this is not the Thumb Rule; the Apex Court in a catena of decisions has observed that if the parties have gone to the legal battle knowing each others’ battle lines, the absence of plea pales into insignificance; the case at hands appears to be one such and therefore, the said contention cannot be countenanced.

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The vehement contention of learned counsel for

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the petitioner that he should be permitted to show that the payment in question was not in connection with the Agreement to Sell at all, has force and for this limited purpose, he is not only entitled to cross-examine the plaintiff but also seek leave of the Court below to produce any additional document/s as well, of course, without brooking any delay; request for leave shall not be opposed by the plaintiff side.

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In the above circumstances, this writ petition fails; however, the first respondent-plaintiff shall pay a cost of Rs.5,000/- to the petitioner within two weeks, since the subject document which is obtained u/s 4 of the Bankers Book Evidence Act, 1891 is already produced and marked as Ex. P.10; if the respondent-plaintiff fails to pay, the learned judge of the Court below shall eschew the said document from the record of evidence.

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All contentions of the parties otherwise available in law are kept open.

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Sd/JUDGE

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Bsv

Smt Hema v. Smt Sheela

Case brief

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Smt Hema v. Smt Sheela

Case brief

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