Allowed

Sri G Siddiah v. Smt Gangalakshamma

Karnataka HC8 Aug 2023WP/3620/2020

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging a trial Court order that denied further evidence due to non-payment of costs. The Court held that the denial of the opportunity to defend outweighs the delay, permitting evidence upon full cost payment.

What did the court decide?

The impugned order dated 18.01.2020 is quashed. Petitioners allowed to lead further evidence upon payment of total cost Rs.25,000/-.

Sri G Siddiah Vs Smt Gangalakshamma — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:28025 WP No. 3620 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 3620 OF 2020 (GM-CPC)

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BETWEEN:

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SRI G SIDDIAH S/O LATE D GANGAIAH, AGED ABOUT 80 YEARS,

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Digitally signed by GURURAJ D Location: High Court of Karnataka

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SRI B S UMASHANKAR S/O SRI G SIDDAIAH AGED ABOUT 50 YEARS, BOTH R/AT NO.118 BYRASANDRA, NEAR JAYANAGAR, 1^ST E BLOCK, BANGALORE - 560 011. …PETITIONERS (BY SRI. N KUMAR, ADV. FOR SRI L S VENKATAKRISHNA, ADV.)

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AND: SMT. GANGALAKSHAMMA W/O LATE BYLAPPA AGED ABOUT 71 YEARS R/AT NO.1207 4^TH CROSS, L N COLONY YESHWANTHPURA BANGALORE - 560 022. …RESPONDENT (BY SRI. M RAMACHANDRA REDDY, ADV. FOR SRI N BAYYA REDDY, ADV.)

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2 - NC: 2023:KHC:28025 WP No. 3620 of 2020

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN O.S.NO.12/2011 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE NELAMANGALA AND SET ASIDE THE ORDER MADE UNDER ANNX-A DATED 18.01.2020 PASSED IN O.S.NO.12/2011 BY THE ADDL. SENIOR CIVIL JUDGE, NELAMANGALA WITH COSTS OF THE W.P. AND SUCH OTHER ANCILLARY AND CONSEQUENTIAL ORDERS.

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

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ORDER

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The petitioners/defendants in O.S.No.12/2011 on the file of the Additional Senior Civil Judge, Nelamangala is before this Court under Article 226 of the Constitution of India questioning the order dated 18.01.2020 rejecting the request of petitioners/defendants for further evidence of defendant.

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Heard learned counsel Sri.N.Kumar for Sri.L.S.Venkatakrishna, learned counsel for the petitioners and learned counsel Sri.M.Ramachandra Reddy for Sri.Bayya Reddy, learned counsel for the respondent. perused the writ petition papers.

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NC: 2023:KHC:28025 WP No. 3620 of 2020

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Learned counsel for the petitioners/defendants

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submits that the trial Court by order dated 20.06.2019, rejected the I.As filed by the petitioners/defendants under Section 151 of CPC and under Order VIII Rule 1 of CPC refusing to re-open the case and to permit them to lead further evidence. Challenging the said order, the petitioners/defendants were before this Court in W.P.Nos.28245-28246/2019. This Court, by order dated 19.11.2019 allowed the writ petitions in the following manner.

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“In the above circumstances, these writ petitions are favoured; the impugned order is set at naught; petitioners subject applications having been allowed, they are permitted to lead further evidence in the matter on payment of cost of Rs.10,000/- (Rupees ten thousand) only to the respondent-plaintiff on or before next date of hearing of the suit, failing which the order now quashed shall stand resurrected.”

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This Court allowed the writ petitions and set aside the

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impugned order therein permitting the petitioners/defendants to lead further evidence, on

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NC: 2023:KHC:28025 WP No. 3620 of 2020

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payment of cost of Rs.10,000/- to the respondent/plaintiff on or before the next date of hearing of the suit, failing which, the order now quashed shall stand resurrected.

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Learned counsel for the petitioners would submit that

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the petitioners/defendants collected copy of the order passed by this Court in the above writ petitions on 07.12.2019 and appeared on the next date, but there was no sitting of the trial Court on the said date and the case was adjourned to 10.12.2019. On 10.12.2019 also there was no sitting of the trial Court and the case was posted to 09.12.2019. As the petitioners/defendants failed to act in terms of the order dated 19.11.2019, the plaintiff filed a memo dated 21.12.2019 stating that the petitioners/ defendants have not complied the order of this Court dated 19.11.2019 and they have not paid cost and hence, they have lost their opportunity to lead their further evidence. On the memo, the trial Court passed impugned order and allowed the memo observing that the petitioners/ defendants have forfeited their right to lead further

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NC: 2023:KHC:28025 WP No. 3620 of 2020

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evidence. Aggrieved by the same, the petitioners/ defendants are before this Court.

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Learned counsel for the respondent/plaintiff would submit that this Court had allowed the writ petitions with a direction to the petitioners/defendants to pay cost on the next date and lead further evidence. But, even after 2 to 3 adjournments before the trial Court, the petitioners/ defendants have failed to pay the cost and lead their evidence. Therefore, without there being any option, the respondent/plaintiff filed a memo and he supports the order passed by the trial Court on the memo.

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By order dated 14.02.2020, this Court issued emergent notice and granted stay as sought for, subject to the petitioners depositing a sum of Rs.15,000/- in the Registry of this Court. The Office note sheet indicates that the said amount of Rs.15,000/- has been deposited before this Court on 05.03.2020.

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NC: 2023:KHC:28025 WP No. 3620 of 2020

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Learned counsel for the petitioners Sri.Kumar has come forward to pay cost of Rs.10,000/- as imposed earlier by this Court and has paid the same to the learned counsel for the respondent/plaintiff before the Court today, which is accepted by the learned counsel for the respondent/plaintiff.

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This Court, by order dated 19.11.2019 in W.P.Nos.28245-28246/2019 allowed the petitioners/

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defendants to lead further evidence, on payment of cost of Rs.10,000/- on or before the next date of hearing. The purpose of allowing earlier writ petition was to provide an opportunity to the defendants to lead evidence. The purpose of allowing earlier writ petition cannot be taken away on the ground that cost is not paid within time. If the petitioners/defendants fail to pay cost and lead further evidence, the same could be allowed, further compensating the respondent/plaintiff, since no litigant should go out of the Court under impression that he has not been provided sufficient opportunity to defend himself.

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7 - NC: 2023:KHC:28025 WP No. 3620 of 2020

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Accordingly, the writ petition is allowed. The impugned order dated 18.01.2020 passed by the Additional Senior Civil Judge, Nelamangala rejecting the request of the petitioners/defendants is quashed. On payment of cost of Rs.25,000/-, the petitioners/ defendants is permitted to lead further evidence. Out of which, today, learned counsel for the petitioners has paid a sum of Rs.10,000/- by way of cash to learned counsel for the respondent/plaintiff. Further, the petitioners/ defendants have deposited Rs.15,000/- before this court towards cost and the respondent/plaintiff would be entitled

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to withdraw the same.

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The Registry shall release a sum of Rs.15,000/- in deposit before this Court to respondent/plaintiff on proper identification.

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The petitioners/defendants shall lead further evidence of defendants on the next date of hearing.

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NC: 2023:KHC:28025 WP No. 3620 of 2020

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Failing which, the defendants would lose their right to lead

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further evidence.

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Sd/JUDGE

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MPK CT:bms

Sri G Siddiah v. Smt Gangalakshamma

Case brief

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Sri G Siddiah v. Smt Gangalakshamma

Case brief

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