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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 21st day of July, 2016
BEFORE
THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR
Writ Petition No.25163/2016 (GM-CPC)
BETWEEN:
Mr.MAHENDRA KARLE AGED ABOUT 59 YEARS ‘VIJAY KUNJ’, 1ST FLOOR 72 (NEW NO.156) CHINNAPPA GARDEN ROAD BANGALORE - 560 046
…PETITIONER
(By Sri.UDAYA HOLLA, SENIOR COUNSEL A/W Sri.VIVEK HOLLA, Adv.,)
AND:
Ms.ANNABEL LAROCQUE MAJOR, DREAM CATCHERS 52/18, BAN BUAK KHROK TAI T T AWANGTAN A SARAPEE CHIANGMAI 50140 THAILAND
Ms.SAMANTHA LAROCQUE MAJOR, D/O.Ms.ANNABEL LAROCQUE DREAM CATCHERS 52/18, BAN BUAK KHROK TAI T T AWANGTAN A SARAPEE CHIANGMAI-50140 THAILAND
...RESPONDENTS
(By Sri.J.HUDSON SAMUEL, Adv.,)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
2 QUASH THE ORDER DATED 16.04.2016 PASSED BY THE COURT OF THE 42ND ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CITY ON I.A.14 IN THE SUIT O.S.4897/2009 AT ANNEX-AA; DIRECT THE RESPONDENTS TO PAY THE COSTS OF THIS PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:-
ORDER
This petition is directed against the order dated 16.4.2016 dismissing I.A.14 under Section 151 CPC filed before the Trial Court to recall the previous Order dated 5.3.2014.
Issue Rule.
Heard Sri Udaya Holla, learned Senior Counsel appearing for the petitioner and Sri J. Hudson Samuel, learned Counsel appearing for the respondents.
Petitioner is plaintiff before the Trial Court. He has filed the instant suit inter alia for a permanent injunction restraining the defendants
3 from sending any e-mails, letters etc., stating that the plaintiff has illegitimately fathered second defendant.
Suit was posted for recording evidence of plaintiff on 5.3.2014. Plaintiff was suffering from viral fever and hence an adjournment was sought during the first round of hearing. In the meanwhile, learned Advocate for the petitioner was held up in other Court. Noting the absence of plaintiff, the suit was posted for defendants’ evidence. By the instant IA., petitioner sought for recalling the order dated 5.3.2014 and to grant further reliefs. The said application was seriously contested contending that two reliefs cannot be sought in one application; that plaintiff had sought several adjournments; that the suit has been rightly posted for recording defendant’s evidence; that subsequent to order dated 5.3.2014, the defendants had proceeded further and
4 filed affidavit evidence in their counter – claim on 14.3.2016; and that the suit was posted on 17.3.2016 to file objections by the plaintiff with regard to production of documents. It is further contended in the objections that the affidavit in support of the application has been filed by one Sudharshan Karle, claiming to be brother of plaintiff and an authorized person. But he is neither a party to the suit nor authorized to depose on behalf of the plaintiff before the Court.
The Trial Court on consideration of the material on record, formulated following points for it’s consideration:- 1. Whether plaintiff’s brothers Sudarshan Karle is entitled to file affidavit in support of I.A.No.14?
Whether the plaintiff has got sufficient grounds to lead evidence by recalling the order dated 05.03.2014?
What order?
5 answering Points No.1 and 2 in the negative, it dismissed the instant IA. Firstly, it is held by the Trial Court that Sudharshan Karle was not a proper person to file an affidavit. Hence, the same is contrary to Civil Rules of Practice. Secondly, that there is inordinate delay in filing the application. Thirdly, that the I.A., does not contain a prayer to lead evidence. The Trial Court has also held that the cause shown by the plaintiff is insufficient; that the I.A., is not supported by a proper person and hence, contents of the affidavit are not acceptable.
Assailing the correctness of the impugned order, Sri Udaya Holla, learned Senior Counsel submitted that the defendants started sending several e-mails commencing from 31.7.2008 as per Annexure ‘A’ seeking some financial help. The contents of the e-mails disclose that the second respondent was seeking admission in 11th Standard
6 in an International School and that they had not asked for any help for 16 years prior to the said e- mails. Few more e-mails followed thereafter. By an e-mail dated 4.7.2009 the second respondent and an e-mail dated 9.7.2009 the first respondent threatened to send copies of e-mails to friends, family members and business associates of the petitioner unless the petitioner paid the School Fee of the second respondent. It was also stated in the e-mails that the petitioner had illegitimately fathered second respondent. Therefore, the petitioner got a legal notice dated 13.7.2009 issued to the respondents. Thereafter, petitioner instituted the instant suit with prayers noted supra. The respondents filed a counter-claim.
Sri Holla, further submitted that though by order dated 5.3.2014, the suit was posted for defendants’ evidence, it is significant to note that it
7 is only on 14.3.2016 that the respondents filed their affidavit evidence. On the next immediate date namely, 17.3.2016, the petitioner has filed the instant IA., to recall the order dated 5.3.2014. Plaint allegations and the counter – claim are very serious in nature. Respondents are residents of Thailand. Petitioner is a reputed businessman in India. No prejudice would be caused to the respondents if an opportunity is given to the petitioner to lead his evidence.
On merits, Sri Holla submitted that the dismissal of IA., in question is primarily on the ground that the affidavit is filed by Sudharshan Karle, who is not an authorized person. Therefore, the contents of the affidavit held to be not acceptable. Further, the finding given by the learned Trial Judge that the affidavit is contrary to Civil Rules of Practice is perverse. He submitted that
8 under the Civil Rules of Practice, there is no bar for an authorized person to file an affidavit and in the instant case, the deponent is none other than the brother of the petitioner. He further submitted that the Trial Court has also held the aspect of delay in filing the instant IA., against the petitioner. In view of the fact that there was no progress in the suit at all and that the lis involves lives of three human beings, it would be just and appropriate to consider allowing the said application on such terms deemed appropriate by this Court.
He placed reliance on the following Judgments of the Hon’ble Supreme Court: (i) Sangram Singh v. Election Tribunal Kotah and another (AIR 1955 SC 425). Adverting to paragraphs No.16 & 17 of the said Judgment, he submitted that the procedure is designed to facilitate justice and it is not a penal enactment;
9 (ii) Sardar Amarjit Singh Kalra (dead) by Lrs. and others v. Pramod Gupta (Smt) (dead) by Lrs. and others [(2003)3 SCC 272]. Adverting to paragraphs No.16 & 17 of the said Judgment, he submitted that the procedure should be liberally construed and the Court should aim to protect the rights of the parties.
With these submissions, he prayed for allowing this writ petition.
Per contra, Sri J. Hudson Samuel, learned Counsel for the respondents supporting the impugned order, vehemently opposed this petition. He submitted that the petitioner being the father of second respondent has abandoned both respondents. When the respondents made attempts to contact legitimately, the petitioner has filed the instant suit in a high-handed manner to deprive respondents of their legitimate rights and privileges. The filing of the instant suit has compelled both respondents who reside overseas to incur huge
10 expenses in defending their cause. They have also filed a counter-claim in the suit, which is yet to be adjudicated. Commenting on the conduct of the petitioner, Sri Samuel submitted that a perusal of dates contained in the order sheet extracted in paragraph No.5 of the statement of objections filed by the respondents portrays the casual and negligent manner in which the petitioner is prosecuting his case. He submitted that the Trial Court was therefore fully justified in rejecting the application, which was not supported by an affidavit by an authorized person. The consequence of rejection of the instant IA., does not affect the petitioner in any manner in as much as the petitioner shall have ample opportunity to cross – examine the respondents-defendants, who have also filed a counter-claim. The subject matter of both suit and the counter-claim hinging around the legitimacy of relation, it would not in any way
11 adversely affect the interest of the petitioner. He further submitted that the respondents shall have no objection for the petitioner to lead his evidence after respondents had let in evidence on the counter – claim. With these submissions, learned Counsel for the respondents prayed for dismissal of this writ petition.
I have given my careful consideration to the submissions of the learned Counsel for the parties, perused the material papers and the judgments noted supra.
Admittedly, this is a lis concerning inter-personal relationship of three human beings. The case of the respondents is that the petitioner is the father of the second respondent. Case of the petitioner is that the respondents are imposing themselves and threatening to malign his reputation if he failed to comply with illegal demands.
The suit is filed on 24.7.2009. Defendants reside overseas. It is undeniable that the suit was posted on several dates. The order sheet dated 5.3.2014 discloses that the suit was posted on that day for plaintiff’s evidence as a last chance and adjourned to 25.3.2014 for defendants’ evidence. Defendants have let-in their evidence by filing an affidavit on 15.3.2016 along with IA.13 for production of documents. On the next following date 17.3.2016, plaintiff came up with the instant IA., to recall the order dated 5.3.2014. Three aspects weighed with the Trial Court to dismiss the IA.14. • Firstly, that the application was accompanied by the affidavit of Sudharshan Karle, who did not produced any authorization. On this premise, the learned Trial Judge has held that Sudharshan Karle was not a ‘proper person’ to file the application
13 and it is against ‘the provisions of Civil Rules of Practice’.
• Secondly, the delay.
• Thirdly, that the application contained a prayer only to set aside the order and did not contain a prayer to lead evidence. However, the Trial Court has noted that has been stated in the affidavit that the petitioner intended to lead evidence.
The first premise with regard to affidavit of Sudharshan Karle and the findings that the application is contrary to Civil Rules of Practice is perverse for following reasons. (1) Interlocutory matters are dealt in Chapter III of Karnataka Civil Rules of Practice. Rule 18 deals with Interlocutory Applications. The relevant portion of the Rule reads as follows:- “18. (1) Every Interlocutory application shall be indicated by the abbreviation “I.A.”
14 and shall be consecutively numbered in each suit, appeal or proceeding in which it is filed.
(2) All facts, on which an applicant relies for making the prayer or obtaining the relief sought in the application, shall be set out in an affidavit accompanying the application. Where, however, the facts on which the application is based appear from the records of the case in the Court or relate to any act or conduct of the applicant’s pleader himself, the Court may permit a memorandum of facts signed by the applicant’s pleader to be filed instead of an affidavit:”
An Affidavit is required to be filed as provided in Chapter IV. A person seeking to file an affidavit is required to describe in such a manner as it would be sufficient to identify him clearly. Relevant Rules are 24 to 27. They read as follows:-
“24. Every affidavit for use in a Civil Court shall set forth the cause title of the proceeding or matter in which it is sought to be used and, in the case of an affidavit in an
15 Interlocutory Application, also the cause title of the Interlocutory Application.
Every person making an affidavit shall be described in the affidavit in such manner as will be sufficient to identify him clearly.
An Affidavit shall be confined to statement of facts and avoid arguments.
27.
When an affidavit contains statement of facts not within the deponent’s personal knowledge but based on the information received by the deponent, he shall state so, and shall also state that he believes the same to be true and shall give the source of such information wherever possible and the grounds of his belief, if any”.
Except stating that the procedure is contrary to the Civil Rules of Practice, the learned Trial Judge has not supported the impugned order by any relevant statutory provision. Nor any thing relevant was pointed out before this Court in this petition.
16 17. On the other hand, in practice, affidavits are filed not only by the parties, but also by ‘Pairokars’ who represent the parties. It may be profitable to note that in the case of Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and another reported in AIR 1966 SC 81, the Hon’ble Supreme Court was considering an affidavit filed before the High Court. It is relevant to note that the said affidavit was filed by a pairokar. The relevant portion of the order of the Hon’ble Supreme Court reads as under:- “(9)………………………………………… The application filed in the High Court certainly complied with the provisions of sub-r.(2) of R.1 of Ch. XXII of the Rules of Court of the Allahabad High Court. It set out concisely in numbered paragraphs the facts upon which the applicant relied, the grounds on which the Court was asked to issue the direction and the exact nature of the relief sought. But it is said that the
17 affidavit filed in support of the application did not speak to matters which were within the deponent’s own knowledge. Dhruva Das, the deponent of the affidavit, is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully conversant with the facts.” (underlining is by me)
In the case of Bijli Cotton Mills (Pvt.) Ltd., v. M/s.Chhaganmal Bastimal and others reported in AIR 1982 ALLAHABAD 183, the Hon’ble High Court of Allahabad has noted that many a times pairokars file affidavit on behalf of party. It is precisely stated as follows in the said judgment:-
“8………………Many a time Pairokar file affidavit on behalf of party and if some material is placed before the Court raising doubts about the veracity of the averment contained in the Pairokar's affidavit or if the fact is necessarily within the personal knowledge of the
18 party, in that situation the affidavit of the party may be necessary. There was no such situation in the instant case. Bhajan Lal Gupta's affidavit could not, therefore, be discarded merely on the ground that he was the plaintiff's Pairokar.”
Perusal of Rule 25 extracted above only mandates that a person making an affidavit should be described in such a manner which shall be sufficient to identify him. At any rate, there is no bar to file an affidavit so long as it is made in consonance with the above Rules.
Sudarshan Karle has described himself as brother of petitioner. It is also stated in the affidavit that he was authorized by his brother to file the I.A., in question. It is precisely stated as follows in the affidavit.
19 “IN THE COURT OF THE HON’BLE CITY CIVIL JUDGE AT BANGALORE
O.S. NO.4897/2009
BETWEEN:
Mr.Mahendra Karle PLAINTIFF
AND:
Ms.Annabel Larocque DEFENDANTS
AFFIDAVIT
I, Sudarshan Karle, son of late Sri.L.T.Karle, major, residing at Bangalore, do hereby solemnly affirm and state on oath as follows:
The Plaintiff herein is a businessman, who travels extensively in India and abroad. Presently, he is in New York. Under these circumstances, I have been authorized by my brother to file the present application.” (underlining is by me)
The above description given in the affidavit is sufficient to identify the deponent.
Hence, the finding given by the Trial Court that the affidavit and I.A., are contrary to Civil Rules of Practice is unsustainable in law.
The second aspect is with regard to delay. Delay is a relative factor and it’s dimension and
20 effect is variable with reference to facts and circumstances in each case. As noted supra, plaintiff ought to have tendered evidence on 5.3.2014, which was his last chance. On the next following date namely, 25.3.2014, the defendants were required to lead their evidence, which they did on 15.3.2016. On the said date, an affidavit was filed on behalf of the defendants and application- IA.13 was also filed to produce documents. The instant application to recall has come up on the very next date namely, 17.3.2016. It is noteworthy that there has been absolutely no progress in the case from 5.3.2014 to 15.3.2016. The defendants have also delayed tendering evidence for nearly two years.
The third aspect is with regard to prayer in the I.A., to lead evidence. This reasoning, in my view is too hyper technical because if the order dated
21 5.3.2014 were to be recalled, by logical corollary, the stage of the case would roll back to the proceedings of the said date which was admittedly set down for recording the evidence of the plaintiff.
The subject matter of lis is a very sensitive one. It touches upon inter – personal human relationship of three individuals. It is unfortunate that such matters are being agitated before Courts of Law. All concerned, based on the veracity of their respective assertions will be suffering various levels of emotional stress. Nonetheless, the legal rights flowing from the relations which the parties to the lis claim, will have to be adjudicated in accordance with law. Parties are before a competent Civil Court. Therefore, their evidence is
vital for appreciation before pronouncement of a verdict. In the normal circumstance, lack of diligence on the part of
22 plaintiff should have disentitled him from any relief. Keeping in view, the delay of about two years caused by the respondents themselves in tendering their evidence and the peculiar facts and circumstances of this case, it would be appropriate to give one and only one opportunity to the petitioner to place his evidence on record. I hasten to add that an unconditional opportunity would amount to placing a premium on a litigant who conducts his case in a very casual manner. Further, the respondents who reside overseas need to be suitably compensated by way of costs.
In the result, the following:- ORDER (i) Writ Petition is allowed and Rule made absolute;
(ii) Order dated 16.4.2016 dismissing I.A.14 under Section 151 CPC filed before the Trial Court to recall the
23 previous Order dated 5.3.2014, is set aside;
(iii) The petitioner shall be permitted to lead his evidence on such date as Trial Court may fix without seeking any adjournment;
(iv) The parties or their Advocates shall present before the Trial Court on 01.08.2016 at 11 a.m. and collect the next immediate date as may be fixed by the Trial Court to tender evidence of the petitioner;
(v) The petitioner shall pay a cost of Rs.50,000/- each to both respondents.
Sd/- JUDGE
cp*