Allowed

Sri. Somashekhar S/O Basavantappa Gadag v. Karnataka Food and Civil Supplies

Karnataka HC5 Dec 2022WP/107984/2017

Case brief

AI extract

What is this about?

This writ petition sought to quash the dismissal of applications seeking reopening of evidence in an execution petition, where absence was due to the advocate's strike. The High Court recalled the impugned order, recalled the witness, advanced the hearing, and imposed costs.

What did the court decide?

The impugned order was set aside; IA Nos. II and III allowed; witness RW1 recalled; hearing advanced; costs of Rs. 5,000 imposed on petitioner.

Sri. Somashekhar S/O Basavantappa Gadag Vs… — Execution and Attachment | Karnataka HC (2022)

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WP No. 107984 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 107984 OF 2017 (GM-CPC)

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BETWEEN:

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SRI. SOMASHEKHAR S/O BASAVANTAPPA GADAG AGE: 43 YEARS, OCC: AGRICULTURE, R/O: PUNEDAHALLI, POST: SANDA, TAL: SHIKARIPURA, DIST: SHIVAMOGGA.

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SMT.RADHA W/O PARASHURAM KATTIMANI, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O: KODAMBI, TAL: MUNDAGOD, DIST: KARWAR.

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SRI.RAJASHEKHAR S/O BASAVANTAPPA GADAG, AGE: 30 YEARS, OCC: STUDENT, R/O: KODAMBI, TAL: MUNDAGOD, DIST: KARWAR.

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…PETITIONERS

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(BY SRI M. S. HARAVI, ADVOCATE)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LTD., DISTRICT OFFICE, HAVERI, REPRESENTED BY ITS DISTRICT MANAGER, HAVERI, DIST: HAVERI.

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…RESPONDENT

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(BY SRI SURESH S. KINI, ADVOCATE)

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THIS WP IS FILED PRAYING TO:- QUASH THE ORDER PASSED ON IA NO.II AND III DATED:22.07.2017 IN EXECUTION PETITION NO.119/2012 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, HAVERI AS PER ANNEXURE-E AND ALLOW THE SAID IA'S AS PRAYED FOR.

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WP No. 107984 of 2017

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THIS PETITION COMING ON FOR PRELIMINARY HEARING B- GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for following reliefs:

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“1. ISSUE writ, order direction in the nature of Certiorari to quash the order passed on I.A.No. II & III dated 22.07.2017 in Execution Petition No.119/2012 on the file of Prl. Senior Civil Judge and C.J.M., Haveri as per Annexure-E and allow the said I.A’s as prayed for.

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2. ISSUE any appropriate writ, order or direction as deems fit by this Hon’ble Court under the facts and circumstances of the case by allowing this petition with cost.”

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The Execution Petition No.119/2012 had been filed for execution of decree passed in O.S.No.08/1999 for recovery of money. By order dated 17.06.2017 taking note of the absence of RW1, the evidence of RW1 was discarded and the evidence closed and the matter was posted for argument.

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In that background, the petitioner who is the JDr before the Execution Court had filed I.A. No.II under Section 151 of C.P.C., was filed for reopening of the case and I.A. No.III filed under Order 18 Rule 17 R/w 151 C.P.C. The Trial Court vide the impugned order dated 22.07.2017

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WP No. 107984 of 2017

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dismissed the said applications, for the reasons that there was no sufficient ground made out in both the applications. The reasons stated as to why RW1 could not be present being strike of the advocates was not acceptable. The application was filed belatedly. It is aggrieved by the said order that the petitioner is before this Court aggrieved by the aforesaid reasons.

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Sri M.S. Haravi, learned counsel for the petitioners submits that apart from the reason as noted by the Trial Court in the affidavit in support of the application under I.A. No.II the JDr had categorically stated that though RW1 had come to the Court that day in a delayed manner, has not been taken into an account by the Trial Court.

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Sri Suresh S. Kini, learned counsel for the respondent would submit that the fact that RW1 was not present and as such the Trial Court has rightly rejected the application. The execution proceedings being of the year 2012 the JDr-respondent has been delaying the proceedings.

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WP No. 107984 of 2017

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Sri M. R. Haravi, learned counsel for the JDr would submit that JDr has not delaying the matter and submits that JDr has only one witness namely RW1 whose evidence is already being led and he is only to be cross examined. Thereafter, there are other witness required to be examined JDr 1.

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He further submits that on the very next date on which the matter would be posted RW1 would be kept present for cross examination and thereafter the arguments be addressed by JDR without seeking for any adjournment.

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His submission is placed on record.

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Taking into consideration the above circumstances and taking into consideration that RW1 had come to Court even though the advocate has not attended the Court, a mistake by the advocate by indulging in a strike cannot result in the litigant being harmed for no fault of his. I am of the considered opinion that the impugned order is required to be recalled. Albeit by imposition of some costs.

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In view of the above, I pass the following:

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WP No. 107984 of 2017

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ORDER

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a) The writ petition is allowed.

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b) A certiorari is issued. Orders passed in I.A.Nos.II & III both dated 22.07.2017 in executive petition No.119/2012 by the Senior Civil Judge and CJM., Haveri, at Annexure-E is set aside.

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c) I.A.Nos.II and III are allowed.

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d) RW1 is recalled.

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e) Both the counsel submit that the matter is now posted on 01.04.2023, the same is advanced to 04.01.2023 when RW1 shall remain present.

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f) The petitioner shall make payment of cost of Rs.5,000/-. Rs.2,500/- to the counsel for the respondent and Rs.2,500/- to the Advocate’s Library Fund Dharwad High court within a period of two weeks from today.

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Sd/JUDGE

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SSP

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List No.: 1 Sl No.: 22

Sri. Somashekhar S/O Basavantappa Gadag v. Karnataka Food and Civil Supplies

Case brief

What is this about?

What did the court decide?

Sri. Somashekhar S/O Basavantappa Gadag v. Karnataka Food and Civil Supplies

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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