C K BALJEE vs. MS VERONICA MARGARET FISCHER

WP No.1357/2013 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2ND DAY OF JULY 2013 BEFORE THE HON’BLE DR. JUSTICE K. BHAKTHAVATSALA WRIT PETITION NO.1357/2013 (GM-CPC) BETWEEN CK Baljee, S/o Late Shri Chunder Baljee, Age: 61 years, Residing at No.11, Venkataswamy Naidu Road, Bangalore-560 059. Petitioner (By Sri Naganand, Sr. Counsel, for M/s. Just Law, Advs.) AND Ms. Veronica Margaret Fischer, Also known as Vera Fisher, D/o Fredrick Thomas Binny, Age: 85 years, Residing at No.81, Charles Street, Apartment No.3, New York, N Y-10014-2641, USA. Respondent (By Sri B K Sampath Kumar, Adv.) - - -

WP No.1357/2013 2 This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to set aside the order dated 21.8.2012 passed by the XXV Addl. City Civil Judge, Bangalore, vide Annexure-E on I.A-IX in O S No.4615/1995 under Order XI Rule 14 r/w Section 151 of CPC. This Petition coming on for preliminary hearing in 'B' Group this day, the Court made the following: ORDER Petitioner, who is plaintiff in O S No.4615/1995 on the file of Addl. City Civil Judge at Bangalore City, is before this Court praying for quashing the order dated 21.8.2012 passed on an application (I.A-IX) filed under Order XI Rule 14 of CPC in the above-said Suit at Annexure-E. 2. Sri Naganand, learned Senior Counsel appearing for the petitioner along with the Counsel on record, submits that as per the impugned order, the petitioner/plaintiff was directed to produce agreement with Lipton India Ltd. and Hindusthan Liver Ltd., and the same has been produced by the petitioner in the Suit. He submits that the petitioner is not challenging the order, in so far as directing the petitioner to produce the said

WP No.1357/2013 3 agreement, but he is challenging the order in so far as directing the petitioner to produce copy of the assessment orders for the assessment years 1990-91, 1991-92, 1992-93, 1993-94 and 1994-95. He submits that respondent/defendant has adopted a method of filing application after application though the evidence of the plaintiff was commenced (by filing an affidavit in lieu of examining in chief) on 11.12.2006 and cross- examination of P.W-1 concluded on 6.3.2008. Thereafter, the respondents filed an application for recalling P.W-1 for further cross-examination. However, trial Court allowed the application and on 9.11.2009, P.W-1 appeared before the trial Court for further cross-examination and at that stage, the defendant filed an application seeking amendment of the written statement, but the same was dismissed as withdrawn and he filed another application for amendment of the written statement and the same was dismissed and the case was posted for further cross- examination of P.W-1. The respondent instead of cross- examining P.W-1 has filed I.A-8 seeking permission to produce documents and the same was dismissed and again the respondent/defendant came with an application seeking

WP No.1357/2013 4 direction to the plaintiff to produce the documents, which is under consideration. Therefore, he submits that there is no merit in the application (I.A-9) seeking direction to produce the assessment orders of the plaintiff and the trial Court erred in allowing the same. He also submits that it is a Suit for specific performance and the burden is on the plaintiff to prove that he was ready and willing to perform his part of obligation, but the trial Court erred in allowing the application filed under Order XI Rule 14 of CPC. 3. Sri Sampath Kumar, learned Counsel for the respondent, submits that so as to prove that the plaintiff had no sufficient source for performance of his obligation under the agreement, the defendant thought it fit to summon the assessment orders of the plaintiff and the trial Court has rightly allowed the application and there is no illegality or infirmity in the impugned order. 4. I have perused the evidence of P.W-1. His evidence was commenced on 11.12.2006 and concluded on 6.3.2008.

WP No.1357/2013 5 The Suit has been filed by the plaintiff in his individual capacity. In the cross-examination of P.W-1, there is no suggestion to the plaintiff that he is an assessee under the Income Tax Act and he has filed income tax returns for the years mentioned in the application. It is pertinent to mention that the burden is on the plaintiff to prove that he was ready and willing to perform his part of obligation under the agreement. Hence, the trial Court erred in directing the petitioner/plaintiff to produce his assessment orders. Therefore, the impugned order is not sustainable in the eye of law. 5. In the result, Petition is partly allowed and the impugned order dated 21.8.2012 passed on I.A-IX in O S No.4615/1995, in so far as directing the petitioner to produce copy of assessment order for the period 1990-91 to 1994-95 is quashed. Sd/- Judge Bjs