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Before: AND
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2018 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.1647/2018(GM-CPC) AND WRIT PETITION Nos.1684-1685/2018 BETWEEN:
SRI K. PRAVEEN, S/O B.K.KRISHNAMURTHY, AGED ABOUT 39 YEARS, R/AT NO. 135, THIGALARA BEEDHI CORNER, RAGHAVENDRA COLONY, RAMANAGAR TOWN/DISTRICT - 562 159. ... PETITIONER
(BY SRI PRAKASH SHETTY S., ADVOCATE )
AND:
SRI B. S. NAGARAJ, S/O LATE B.R.SHIVARUDRAPPA AGED ABOUT 69 YEARS, R/AT NO.66, WHITE LODGE CLOSE, ISLEWORTH MIDDLESEX, TW7-6TH ENGLAND, UNITTED KINDOM - 512 475. ... RESPONDENT
(BY SRI NARENDRA D. V. GOWDA, ADVOCATE FOR R1) ……
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER ANNEXURE-A ORDER DATED 08.01.2018 MADE IN O.S.NO.111/2017 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA AND ALLOW THE I.A.'S FILED BY THE PETITIONER AND ALSO WRITTEN STATEMENT FILED BY THE PETITIONER.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
It is an unfortunate case where the petitioner/ defendant and his counsel are blaming the Court, for the lack of institutional responsibility on their part. After arguing the matter for some time, Sri S. Prakash Shetty, learned counsel for the petitioner prays to unconditionally withdraw the allegations made in para 6 of the writ petition. In the interest of justice, same is permitted.
The petitioner/defendant filed the present writ petition against the order dated 08.01.2018 made in O.S. No.111/2017 passed by the Prl. Senior Civil Judge and CJM, Ramanagara, rejecting the applications filed
3 by the defendant under Section 151 of Code of Civil Procedure with cost of `500/-.
The present respondent who is the plaintiff before the Trial Court filed suit in O.S.No.111/2017 on the file of the Prl. Senior Civil Judge and CJM, Ramanagara, for ejectment directing the defendant to quit and deliver vacant possession of the suit schedule premises, and for payment of damages of `2,50,000/- per month to the plaintiff, along with interest at the rate of 24% per annum from 24.01.2016 till realization, for the defendant’s unauthorized use and occupation of the schedule premises and to pay a sum of `3,00,000/- towards the damage caused to the schedule premises, contending that, the plaintiff is the owner of the suit schedule property. The defendant’s brother by name K. Raghavendra, approached the plaintiff’s power of attorney holder and obtained the suit schedule property for lease under registered lease deed dated 25.02.2010
4 for a period of five years to run a provision store in the name and style ‘Sri Kanchi Traders’ by paying advance amount of `8,00,000/- and under clause (4) of the deed, agreed to pay rent at the rate of `40,000/- per month with enhancement at 5% every year. Since the defendant was in due towards arrears of rent, plaintiff filed the suit for the relief sought for.
In response to the suit summons issued by the Trial Court returnable by 10.07.2017, the defendant appeared through his counsel. The matter was posted for filing of written statement by 21.08.2017. The defendant neither appeared nor filed the written statement. Therefore, written statement was taken as nil and the matter was posted to 30.10.2017 for plaintiff’s evidence. On that day, plaintiff filed affidavit evidence and the matter was posted to 17.10.2017 for marking of documents. Exs.P.1 to P.13 were marked and the matter was posted to 07.11.2017 for cross-
5 examination of P.W.1. Since P.W.1 was absent, the matter was posted to 04.12.2017. The defendant sought time to cross examine P.W.1. The Trial Court refused to grant time and posted the matter to 12.12.2017 for arguments. On that day, counsel for the plaintiff argued the matter. Defendant’s counsel was not present and therefore, the Trial Court posted the matter to 12.01.2018 for judgment. At that stage, learned counsel for the defendant filed three applications all under Section 151 of Code of Civil Procedure, with respective prayers to advance the matter from 12.01.2018 to 08.01.2018, to reopen the case from the stage of arguments for considering written statement and to receive the written statement by recalling the orders. The said applications were opposed by the plaintiff by filing objections, separately.
After considering the applications and the objections, the Trial Court, by the impugned order dated
6 08.01.2018, dismissed all the three applications with cost of `500/- each. Hence, the present writ petitions are filed by the defendant. 6. I have heard the learned counsel for the parties to the lis.
Sri S.Prakash Shetty, learned counsel for the petitioner/defendant vehemently contended that the impugned order passed by the Trial Court rejecting the three applications filed by the defendant is erroneous and contrary to the material on record. He contended that though the application seeking permission to file written statement was not filed within a reasonable time, when the matter was posted for plaintiff’s arguments, on that day defendant’s counsel was not present. The learned Judge ought to have given an opportunity to the defendant to proceed with the case. Because of the mistake committed by the advocate, the defendant/petitioner should not suffer and an
7 opportunity should be given to the defendant to putforth his case and therefore, sought to quash the impugned order by allowing the writ petitions.
Per contra, Sri Narendra D.V.Gowda, learned counsel for the respondent/plaintiff sought to justify the impugned order and strenuously contended that, as long back as on 21.08.2017, the written statement was taken as nil. Though the defendant engaged an advocate, written statement was not filed. Defendant has not filed any application seeking permission to file the written statement. When the matter was posted on 04.12.2017, the defendant sought time to cross- examine the P.W.1. The Trial Court refused to grant time for cross-examination and posted the suit for arguments. On that day, no application was filed by the defendant. Only after completion of arguments of plaintiff, when the matter for posted for judgment, the defendant has come up with the above three
8 applications. Because of the mistake committed by the defendant and his counsel, the defendant cannot blame the Court. Therefore, he sought to dismiss the writ petitions with exemplary costs.
Having heard the learned counsel for the parties, it is not in dispute that the respondent/plaintiff filed suit against the petitioner/defendant for ejectment and for damages. The material on record and the arguments advanced by learned counsel for the parties clearly depicts that there is no dispute with regard to relationship of landlord and tenant between the parties. It is also not in dispute that the matter is being posted every month from 21.08.2017 till 12.12.2017. The order sheet depicts that neither the defendant nor his counsel are diligent in conducting the case and ultimately when the matter was posted for judgment, at that stage, present applications are filed. The conduct of the defendant and his counsel is nothing but colossal
9 insult to justice and to the concept of speedy disposal of civil litigation. The acts of the defendant and his counsel is against the majesty of law.
In the applications, the defendant has stated that after receipt of summons, he could not file written statement well within time due to non availability of documents relating to the transaction between himself and the plaintiff and was able to secure them very recently and subsequently, he handed over them to his counsel and based on the same, written statement was prepared by his counsel and accordingly, he is filing the same. After verifying the order sheet, he came to know that the Court has taken written statement as not filed and posted the matter for arguments on 12.01.2018. Therefore, he filed applications. In the affidavits filed in support of the applications, there is no clarity. The applications and affidavits themselves will depict that the defendant has no responsibility and is negligent in
10 prosecuting the suit. The conduct of the defendant shows his attitude to drag the proceedings and has approached this Court at a final stage.
It is also relevant to observe at this stage that, for the irresponsibility and negligence shown by the defendant, his counsel is also equally responsible. Once the advocate files his power, it is his bounden duty to take care of the case and conduct the proceedings. Absence of the counsel on one or two hearing dates may be tolerated. But, in the present case on hand, the learned counsel for the defendant has remained away from the proceedings for more than four months and has failed to do his institutional responsibility. These type of advocates may be found in the Bar to an extent of 2%. But at the cost of such advocates, the Institution is blamed at large. Now it is high time that the Bar Council or the Advocates’ Association concerned or this
11 Court take steps against such erring advocates to uphold the dignity and majesty of law.
The litigants approach the Court with great expectations treating the Court as ‘temple of justice’. The advocates or the Presiding Officer/Judge of the Court should work as ‘Archakas’ and custodians of the temple of justice. If an advocate does not discharge his duty, it results in injustice to the litigant. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by restoring to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to
12 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
The substituted Order VIII Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiff and the petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.
This Court is aware of the fact that all the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should
13 ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of Code of Civil Procedure or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
The said procedure should not be misused by the present defendant or his counsel who represented the defendant before the Trial Court and cannot misuse the procedure by adopting tactics of delaying the proceedings.
Taking into consideration the surrounding circumstances and the facts on hand that though it is the lethargic attitude of the defendant and non institutional responsibility by the counsel, ultimately, justice should not be buried and an opportunity should
14 be given to the party who approaches the Court with great expectations.
The Trial Court, dismissed the applications mainly on the ground that the defendant did not chose to file the written statement and kept quite for nearly ten months and when the matter was posted for judgment, filed the present applications. Though the learned Judge has not passed a detailed order, the fact remains that the mistake is on the part of the defendant and his counsel.
The inherent power of the Court should be exercised to avoid injustice and to decide the case on merits in order to do substantial justice and this Court is of the opinion that an opportunity should be given to the petitioner/defendant to putforth his case. My view is fortified by the decision of the Hon’ble Supreme Court in the case of K.K.Velusamy vs. N.Palanisamy reported
15 in (2011)11 SCC 275, wherein, at paragraphs 11, 12, 14 and 15, it is held as under: 11. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross- examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.
16 12. The respondent contended that section 151 cannot be used for re- opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a
17 necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co- extensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special
18 provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the
19 applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court. 14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
20 15. The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with
21 reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.
Taking into consideration the fact that the suit was filed in the year 2017 and the matter is at the stage of arguments, for the fault of the counsel for defendant, the party should not suffer and opportunity of filing written statement, cross examining the P.W.1 and leading evidence of the defendant should not denied. The Trial Court ought to have allowed the applications by imposing cost. The same has not been done in the present case.
Learned counsel for the respondent/plaintiff submits that from January 2016 till date, the defendant /petitioner has not paid the rents, as agreed. Learned counsel for the petitioner/defendant fairly submits that the petitioner is ready to pay arrears of rent by way of
22 cheque from January 2016 to January 2018 at the rate of `40,000/- per month to the respondent/plaintiff, as was being paid prior to January 2016, within a period of two weeks from today. The said fair submission is placed on record. If there is any difference with regard to damages or rent, it is open for the respondent/ plaintiff to file memo of calculation and ultimately, he can claim damages, in accordance with law and if the petitioner failed to pay the rent/ damages as agreed by the counsel for the petitioner/defendant. It is always open for the respondent/landlord to take appropriate steps to recover the same in accordance with law.
For the reasons stated above, writ petitions are allowed. The impugned order dated 08.01.2018 passed by the Trial Court is quashed. All the three applications filed under Section 151 of Code of Civil Procedure are allowed, subject to payment of cost of `15,000/- payable to the plaintiff by the defendant and his counsel before
23 the Trial Court, proportionately, on the next date of hearing. On such payment, the Trial Court shall permit the defendant to proceed with the case, in accordance with law. The written statement already filed by the defendant along with the application is ordered to be taken on record.
The Trial Court shall frame issues within two days from the date of receipt of copy of this order and permit the defendant to cross examine P.W.1 on 25.01.2018 and on that day, the defendant shall cross-examine P.W.1, without seeking any further adjournment. The Trial Court, after providing an opportunity to the defendant to lead his evidence, shall proceed in accordance with law. Ordered accordingly.
Sd/-
JUDGE
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