Allowed

Shoukat S/O Papalal Maldar v. Shankar S/O Siddappa Hebbali

Karnataka HC5 Dec 2022WP/108404/2017

Case brief

AI extract

What is this about?

High Court allowed a writ petition quashing the Trial Court's rejection of an application to reopen a civil suit for reopening evidence. The Court held delays could be condoned for documents from a related cheque dishonour criminal case and ordered the civil suit reopened.

What did the court decide?

Impugned order set aside; application under Order 18 Rule 17A CPC allowed; case reopened for plaintiff's further evidence; petitioner to pay costs.

Shoukat S/O Papalal Maldar Vs Shankar S/O Siddappa Hebbali — Cheque Dishonour | Karnataka HC (2022)

¶1

¶2

WP No. 108404 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5^TH DAY OF DECEMBER, 2022

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 108404 OF 2017 (GM-CPC)

¶6

BETWEEN:

¶7

SHOUKAT S/O PAPALAL MALDAR AGE: 55 YEARS, OCC: BUSINESS, R/O: SANKESHWAR-5911313, TQ: HUKKERI, DIST: BELAGAVI.

¶8

…PETITIONER (BY SRI B. S. KAMATE, ADVOCATE)

¶9

AND:

¶10

SHANKAR S/O SIDDAPPA HEBBALI AGE: 56 YEARS, OCC: BUSINESS, R/O: SANKESHWAR-5911313, TQ: HUKKERI, DIST: BELAGAVI.

¶11

…RESPONDENT

¶12

Digitally signed by SUJATA SUBHASH PAMMAR

¶13

(BY SRI NEELENDRA D. GUNDE, ADVOCATE)

¶14

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO:- a) QUASH THE IMPUGNED ORDER DATED:05.08.2017 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, SANKESHWAR IN O.S.NO.174/2008 PRODUCED AT ANNEXURE-J AND ETC.,

¶15

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

¶16

¶17

WP No. 108404 of 2017

¶18

ORDER

¶19

The petitioner is before this Court seeking for following reliefs:

¶20

“a) a writ in the nature of certiorari or any other writ or order or direction, quashing the impugned order dated:05.08.2017 passed by the Principal Civil Judge and JMFC, Sankeshwar in O.S.No.174/2008 produced at Annexure-J.

¶21

b) to pass an order allowing applications filed under Sec.151 CPC and U/O.18 R-17A of CPC vide Annexures-C & D.

¶22

c) to pass an order or direction directing trial court to receive and consider the application filed by plaintiff under U/O.7.R-14A dated:01.07.2017 along with the list of documents vide annexure-G.

¶23

d) such other writ or orders or direction may deem fit under the facts and circumstances of the case, be issued in the interest of justice.”

¶24

O.S.No.174/2008 had been filed by the petitioner as Plaintiff seeking for recovery of sum of Rs.3,98,780/along with the interest at the rate of 18% p.a. In said suit the plaintiff examined himself as PW1 and marked 18 documents as PW1 to PW18. Thereafter the matter was posted for the evidence of the defendant. The defendant examined himself and Ex.D1 was marked. Crossexamination had been deferred and the matter was adjourned on several occasions.

¶25

¶26

WP No. 108404 of 2017

¶27

It is at that stage that the petitioner-plaintiff filed an application order 18 Rule 17 R/w 151 of the CPC for reopening the case and recall of PW1 for further examination-in-chief. The said application was objected to and the Trial Court vide its impugned order dated 05.08.2017 rejected the application. In that background the petitioner is before this Court.

¶28

Sri B. S. Kamate, learned counsel appearing for the petitioner would submit that;

¶29

i. The petitioner had earlier filed a criminal case in CC No.213/2006 under Section 138 of the Negotiable instruments Act, for dishonour of the cheque issued by the Defendant and in the said proceedings there are several documents which had been marked to support the case of the petitioner.

¶30

ii. The very documents, being necessary to support the case of the petitioner in the recovery suit, the aforesaid application is filed after obtaining certified copies of those documents in CC No.213/2006.

¶31

¶32

WP No. 108404 of 2017

¶33

iii. A further application has been filed under Order 7 Rule 14A of CPC on the very same day detailing out the 315 documents which has been Exhibited in CC No.213/2006 and these documents are relevant in the suit for recovery they being required to establish the liability of the defendant.

¶34

iv. The Trial Court ought to have allowed the application by considering that the certified copy of these documents produced in other proceedings.

¶35

Per contra, Sri Neelendra D. Gunde, learned counsel appearing for respondent would submit that the Trial Court has rightly rejected the applications by taking account the fact that the evidence of the plaintiff was concluded on 11.11.2016. Thereafter, defendant’s evidence is led and it is only in July 2017 that the application had been filed. There being a delay of more than 8 months in filing of the application. He therefore submits that, the writ petition is required to be dismissed.

¶36

¶37

WP No. 108404 of 2017

¶38

Heard, Sri B. S. Kamate, learned counsel for the petitioner and Sri Neelendra D. Gunde, learned counsel for the respondent and perused the papers.

¶39

Admittedly the suit is one for recovery of money. Admittedly there is another proceeding in CC No.213/2006 which has been filed by the petitioner against the respondent. In the said proceedings 315 exhibits have been marked, which are relevant for that particular purpose. The proceeding in CC No.213/2006 has been filed for offence punishable under Section 138 of the Negotiable Instruments Act. The suit in OS No.174/2008 was filed for recovery of money. Both the proceedings are related to each other one being criminal proceeding for the offence of dishonour of cheque, the other being for recovery of money.

¶40

In such circumstances, I am of the considered opinion that the documents which have been marked in the 138 proceedings would also be relevant insofar as recovery suit is concerned. Of course there is delay on part of the plaintiff in producing the said documents, which could

¶41

¶42

WP No. 108404 of 2017

¶43

have been condoned and the defendant’s interest protected by imposing certain conditions, instead of out rightly rejecting the application filed by the plaintiff.

¶44

In view of the above, I pass the following:

¶45

ORDER

¶46

i. The writ petition is allowed.

¶47

ii. A certiorari is issued, impugned order dated 05.08.2017 passed by the Principal Civil Judge and JMFC, Sankeshwar in O.S.No.174/2008 is set aside.

¶48

iii. Consequently, the application filed under Order 18 Rule 17A of the CPC stands allowed.

¶49

iv. The case is reopened to the stage of further evidence of the plaintiff. Petitioner is permitted to mark the documents which had been produced along with the application under Order VII Rule 14A filed on 01.07.2017 as per Annexure-G.

¶50

v. Since the order is passed in the presence of both the counsel the parties shall appear before the trial Court on the next date of hearing without requirement of any further notice.

¶51

¶52

WP No. 108404 of 2017

¶53

vi. The submission made by Sri. B. S. Kamate, learned counsel for the petitioner that he would keep PW1 present and lead his further evidence without seeking for any adjournment is placed on record.

¶54

vii. It is made clear that, in the event of PW1 not being present and documents not being marked on that day, the plaintiff would not be entitled for the benefit of the above order.

¶55

viii. The trial Court to proceed therefrom.

¶56

ix. The petitioner shall make payment of a sum of Rs.5,000/- (Rupees Five Thousand Only) as costs, Rs.2,500 to the defendant and Rs.2,500/to the Advocates’ Association Library Fund, High Court of Karnataka, Dharwad Bench, within a period of two weeks from today.

¶57

SSP,GAB List No.: 1 Sl No.: 23

¶58

Sd/JUDGE

Shoukat S/O Papalal Maldar v. Shankar S/O Siddappa Hebbali

Case brief

What is this about?

What did the court decide?

Shoukat S/O Papalal Maldar v. Shankar S/O Siddappa Hebbali

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramesh S/O Goneppa Doddaputtannavar, Vs Smt.Gangamma W/O Ramappa Samudri

Pujar Shivappa @ Sudha Vs Gouramma

Smt.Shivabasawwa W/O Karabasappa Hosamani Vs Shri.Basanagouda Linganagouda Hosamani

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

Abdulkhadar S/O Babajansab Hulageri Vs Umesh S/O Channabasayya Malimath

Athani Sugars Limited Vs State of Karnataka