Ladies Touch vs Safina Hotel Ltd.

B.S. Patil, J.—In this writ petition, petitioner is challenging the order dated 10.03.2010 passed by the learned Addl. City Civil Judge, Bangalore City, rejecting the applications filed under Order XVIII Rule 7 CPC and u/s 151 CPC, praying to re open the trial and recall PW-1 for further cross-examination.

Petitioner herein is the defendant before the Trial Court. The suit is filed by the plaintiff-respondent seeking mandatory injunction for ejectment of the defendant on the ground that the defendant was inducted into the suit schedule premises as a licensee. The evidence of the parties was completed and the matter was posted for arguments. At that stage, on an earlier occasion an application was made for recalling PW-1 for cross- examination. An application was also filed under Order XI Rule 14 seeking a direction to the plaintiff to produce the sanctioned plan of the schedule property. The said application was allowed or. 21.06.2008. The plaintiff, pursuant to the direction issued, produced the xerox copy of the plan and thereafter PW-1 was cross-examined. However, PW-1 was discharged on a subsequent date. But, on an application filed by the defendant, PW-1 was again recalled for further cross-examination. It is thereafter that the matter was taken up for hearing on the main matter and the argument of the plaintiff was heard. When the defendant was to argue the matter, the present application is filed seeking to recall PW-1 for further cross-examination with regard to the sanctioned plan and also regarding the measurement of the suit schedule property.

The court below has rejected the application holding that the contentious issue between the parties is as to whether the defendant is in occupation of the premises as a licensee or as a lessee and therefore, the application filed to further cross-examine on the alleged measurement of the sanctioned plan is of no consequence. The court has also found that the defendant had indulged in protracting the matter by filing application after application, which amounts to misusing the process of the court.

Learned Counsel for the petitioner Sri Shekhar Shetty contends that in the light of the defence taken by the petitioner in the written statement at paragraph 4A that the schedule property measures less than 14 sq. mtrs. and the monthly rental is Rs. 2.000/- and hence the provisions of the Karnataka Rent Act, 1999 are applicable and the Civil Court had no jurisdiction to entertain the suit, it was necessary for the defendant to further cross-examine PW-1 with reference to the measurement of the sanctioned plan and therefore, the court below was not right and justified in rejecting the application. He points out that the question whether the defendant is occupying the premises as a licensee or lessee is not the sole question and the maintainability of the suit in case it is held that the petitioner is not occupying the premises as a licensee assumes significance for several other factors.

Learned Counsel appealing for the respondent strongly refutes the contentions of the petitioner and supports the order passed.

Having heard the learned Counsel for the parties and on perusal of the materials on record, I find that the plaintiff has been cross-examined on more than one occasion by the defendant and the court below has permitted the petitioner to cross examine by recalling PW-1, when PW-1 was earlier discharged. It is also relevant to point out that the plaintiff has produced the xerox copy of the sanctioned plan on 04.10.2008 and thereafter PW-1 was cross-examined on 17.04.2009 in part. PW-1 was recalled and subjected to further cross-examination by allowing the application filed by the petitioner-defendant. Nothing prevented the petitioner from eliciting whatever material that he intended to, at the time when such an opportunity was available to him. When the final arguments of the case were heard and after completion of the arguments on the part of the plaintiff, the present application is filed. I do not find any justification at all in making such an application. The Trial Court was right and justified in rejecting the prayer. There is no patent illegality or error of jurisdiction in the order passed. Hence, the writ petition is dismissed.