Allowed

Sri Chandrashekar v. Smt v N Malathi

Karnataka HC22 Mar 2022WP/23077/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition under Article 226 quashing an order rejecting a plaintiff's application for recall to present evidence. The Court held that the trial Court erred in assessing pleading sufficiency prematurely before the trial stage. The Writ Petition was allowed, setting aside the impugned order and permitting the recall.

What did the court decide?

Impugned order dated 10.04.2017 quashed; IA.No.13 under Order 18 Rule 17 CPC allowed to recall Plaintiff for further evidence regarding alleged Agreement dated 13.02.2008.

Sri Chandrashekar Vs Smt v N Malathi — Service and Employment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^nd DAY OF MARCH 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.23077 OF 2017 (GM-CPC)

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BETWEEN:

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Sri Chandrashekar, S/o Sri Ningappa, Aged about 54 years, R/at Flat No.31, 1^st Floor, Brundavan Apartment, Akashavani Circle, V.V.Mohalla, Mysore-02. .. Petitioner

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( By Sri Shirish Krishna, Advocate And Sri Joseph Anthony, Advocate )

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AND:

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Smt. V.N.Malathi, D/o Sri V.L.Narayana Rao, Aged about 67 years, R/at Door No.164, Vaishnavi Farm, Opp: Helipad, Lalithadripura, Mysore-28.

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Sri C. Srirama, S/o Late Sri Chowdaiah, Aged about 50 years, R/at Door No.24, 3^rd Cross, Vinayakanagara, Mysore-01. .. Respondents

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(By Sri P.Nehru & Sri Rajesh Kumar V., Advocates For R-1 and Sri P.Nataraju, Advocate for R-2 )

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WP.No.23077/2017

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This Writ Petition is filed under Article 227 of the Constitution of India praying to issue a writ in the nature of certiorari quashing the impugned order dated 10.04.2017 passed by the 2^nd Addl.Senior Civil Judge at Mysuru, on IA.No.13 in O.S.No.907/2011, vide Annexure-A and subsequently allow the application filed by the petitioner under Order 18 Rule 17 of CPC and to grant such other order or orders as this Hon’ble Court deems fit under the circumstances of the case, including costs, in the interest of justice and equity.

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This Writ Petition coming on for Orders through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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ORDER

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The present petitioner, as a plaintiff, has instituted a suit in O.S.No.907/2011, on the file of learned II Addl.Senior Civil Judge, at Mysuru, (hereinafter for brevity referred to as `trial Court’), against the present respondents arraying them as defendant Nos.1 and 2, for the relief of specific performance of an alleged Agreement dated 16.03.2009 said to have been executed by the present respondent No.1 in his favour.

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The present petitioner, as a plaintiff, filed an application under Order XVIII Rule 17 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC’), seeking permission of the Court to recall him for

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giving his further evidence. The said application came to be rejected on its merit by the trial Court by its impugned order dated 10.04.2017. Aggrieved by the same, the plaintiff in the trial Court is before this Court as a petitioner.

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Though this matter is listed for hearing on IA.No.1/2022 filed by the petitioner under Section 151 of CPC, seeking extension of the interim order, however, with the consent from both side, the matter is taken up for its final disposal on merits.

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Learned counsel for the petitioner submits that though the specific word that the petitioner as a plaintiff had entered into an agreement with defendant No.1 on 13.02.2008 is not spelt in verbatim in the plaint, however, a reading of the plaint would go to show that from 13.02.2008 upto 16.03.2009, on different occasions, the plaintiff had paid various amounts to defendant No.1, who was the alleged vendor. The said fact of the payment is evidenced in an Agreement dated 13.02.2008, which

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agreement he intended to mark as an exhibit after getting himself recalled for his further evidence.

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Learned counsel for respondent No.2 while

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vehemently opposing the contention of the petitioner, submits that in the absence of any pleading in the plaint, the plaintiff is not entitled to get himself recalled for the purpose of marking the alleged Agreement dated 13.02.2008. Any exercise in that regard would be only a futile exercise. He also submits that in the previous round of litigation, an attempt of the plaintiff (petitioner herein) to get the permission to amend his pleading by incorporating an averment with respect to the alleged Agreement dated 13.02.2008 was also rejected both by the trial Court, as well by this Court. As such, allowing of the present IA. which is the subject matter of the impugned order, would be a futile exercise.

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The plaintiff claims that he is an agreement holder with respect to sale of an immovable property from

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defendant No.1 (respondent No.1). The defendant No.2 (present respondent No.2) claims to be another agreement holder for purchase of the very same property through the very same vendor and whose suit for specific performance is also said to be pending in the competent Court of law. Admittedly, the petitioner herein as a plaintiff in his plaint has not mentioned that he had entered into an agreement with defendant No.1 on 13.02.2008, however, his plaint concentrates on alleged Agreement of Sale dated 16.03.2009. It is based upon the said absence of a specific word mentioning that the alleged transactions from 13.02.2008 up to 16.03.2009 were upon an unregistered Agreement dated 13.02.2008, the trial Court rejected the application of the plaintiff filed under Order XVIII Rule 17 of CPC.

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No doubt, the present petitioner’s/plaintiff’s attempt to carry out necessary amendment in the plaint went in vein, however, the same cannot be the sole criteria to assess the merits of IA.No.13 filed under Order XVIII Rule

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17 of CPC. The mere observation that in the absence of a specific pleading regarding the Agreement dated 13.02.2008 in the plaint denying an opportunity to the plaintiff to put forth his case completely would, in my view, results in pre-trial assessment of the merits of the case of the plaintiff.

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Needless to say that, even if the plaintiff leads oral or documentary evidence, the competent Court (the trial Court in the instant case), would have to appreciate the entertainment of such evidence which is alleged to be bereft of corresponding pleading. It is at that stage, the Court may say that any amount of evidence led in the absence of pleading need not be considered. However, when the plaintiff contends that a reading of the plaint in its entirety cannot be construed as the absence of the pleading, in such an event, the trial Court in its impugned order, evaluating the plaint averments regarding the pleading with respect to the alleged Agreement dated

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13.02.2008, would amounts to a pre-trial issue with respect to the alleged Agreement dated 13.02.2008.

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As such, though the contesting defendants in the trial Court have every opportunity commencing from marking of the documents upto the stage of argument where they can pursue the Court regarding the admissibility and appreciation of the evidence in the absence of pleading, the trial Court ought not to have shown its hastiness in assessing the merits of the plaint averments about the absence or not of the pleading with respect to the alleged Agreement dated 13.02.2008. Thus, the impugned order passed by the trial Court deserves to be set aside and IA.No.13 filed by the plaintiff under Order XVIII Rule 17 of CPC in O.S.No.907/2011 deserves to be allowed.

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It is ordered accordingly. However, it is made clear that allowing of IA.No.13 would not be construed in any manner as a permission to mark the alleged Agreement dated 13.02.2008 if it has any objection by the defendants

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for marking the said document. At the same time, it also cannot be construed that this order leads to any inference about the existence of the alleged agreement between the parties, its authenticity and the truthfulness of its contents, which are all open for trial. The recalling of PW-1 for his further evidence would also be confining to the alleged Agreement dated 13.02.2008 only.

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With the above observation, the Writ Petition stands

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allowed.

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In view of disposal of the main writ petition, IA.No.1/2022 does not survive for consideration.

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Sd/JUDGE

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bk/

Sri Chandrashekar v. Smt v N Malathi

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Sri Chandrashekar v. Smt v N Malathi

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