Nagaraj vs Kiran

B. Veerappa, J.

The petitioner, who is the defendant, filed the above writ petition challenging the order dated 16.02.2015 passed on I.A. No. 13 in O.S. No. 722/2010 rejecting I.A. No. 13 under Section 151 of the Code of Civil Procedure, 1908, for permission to cross-examine PW-1.

The respondent, who is the plaintiff in O.S. No. 722/2010, had filed the suit for recovery of possession of the suit property and arrears of rent of Rs. 11,400/-, alleging that he is the owner of the property in question and the defendant/present petitioner, is a tenant in respect of non-residential premises bearing No. 31, Old No. 33 comprised in CTS No. 5267 and its R.S. Nos. 241/A and 241/B measuring East-West towards the south 79'', East-West towards north 65'' + 25'' and North-South towards East side 28'' and south-north towards West 26'', situated at Mahatma Phule Road, Shahapur, Belgaum and also stated that the defendant is running a mechanical business in the name of Ayyappa Swamy Motor Garage in the suit property. The said temporary tenement/premises was given to the defendant on lease and licence basis on 01.11.2005 for the period of 11 months on a monthly licence fee of Rs. 1,750/-, which is payable according to English Calendar months and the defendant was paying rent of Rs. 1,900/- p.m. till November 2009. Thereafter, defendant stopped paying rental amount and defendant has committed default in the matter of payment of rental from 01.12.2009 till today. The defendant has no legal and valid reasons for withholding rents, etc.

The present petitioner, who is the defendant before the trial court, filed written statement denying the entire plaint averments and sought for dismissal of the suit. After completion of the evidence on both sides and after plaintiff''s arguments, the matter was posted for defendant''s arguments. At that belated stage, defendant filed I.A. No. 13 under Section 151 of the Code of Civil Procedure for permission to cross-examine PW-1. The said application was rejected by the trial court with cost of Rs. 500/- by the impugned order. Against the said order, the present writ petition is filed.

I have heard the learned counsel for the petitioner.

Sri. Deepak S. Kulkarni, learned counsel for the petitioner, has contended that the order passed by the trial court rejecting his application for permission, is bad in law and the same is liable to be set aside. The trial court ought to have granted an opportunity to the petitioner to cross-examine PW-1. He also contended that the trial court has not taken into consideration of the fact that there was an agitation for establishment of permanent Bench of Karnataka Administrative Tribunal at Belagavi and due to that, there was boycott of the Courts by the Advocates of the Belgavi Bar Association during the months of October, November and December 2013. There was continued agitation for two months. Therefore, he could not be present for cross-examination of PW-1. He also contended that the trial court has not taken into consideration of the fact that thereafter, on 26.03.2014, respondent has filed I.A. No. XI to produce the copy of the sale deed. It was rejected on 16.06.2014. Thereafter, on 25.06.2014, the trial court, without posting the case for cross-examination of PW-1, directly posted the case for defendant''s evidence. The trial court wrongly came to the conclusion that the defendant is not diligent in conducting the case. The trial court has not taken into consideration of the fact that the petitioner is suffering from severe liver decease, etc. Therefore, he sought to set aside the impugned order.

I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record.

It is not in dispute that the respondent, who was the plaintiff in O.S. No. 722/2010, filed the suit for recovery of possession and arrears of rent, contending that he is the owner of the suit property and his ownership is admitted by the defendant, who is the tenant and has paid rents upto November 2009 and thereafter, he stopped payment of rents w.e.f. 01.12.2009 till today. Inspite of repeated requests, he has not paid the rents.

The trial court, after considering the entire material on record, has specifically recorded a finding that now the case is posted for arguments and the plaintiff has already addressed his arguments on 21.01.2015 and after hearing the arguments, the present application has been filed by the defendant. In fact, whatever the contentions taken in the objections filed by the plaintiff are true and correct and same is substantiated when we look into the order-sheet maintained by the Court in respect of the present suit. It is to be noted that for cross-examination of PW-1, the Court has granted time from 15.12.2010 to 11.02.2011 i.e., four adjournments for cross-examination of PW-1. But, the defendant has failed to cross-examine PW-1 well within time and thereafter, PWs-1 and 3 were examined and the Court has also granted time for cross-examination of PWs-2 and 3 on 31.05.2011. On that day, no cross-examination was held. Thereafter, on 13.06.2011, the Court has taken the cross-examination of PWs-2 and 3 as nil and the case was posted for evidence on defendant side. On 12.06.2011 and 23.06.2011, defendant has not led any evidence and thereafter, on 29.06.2011, the counsel for defendant filed an application seeking recall of PWs-1 to 3 for cross-examination. On that day, the Court has allowed the application and permitted to cross-examine PWs-1 to 3 on 04.07.2011. But, on that date, defendant has not opted to cross-examine PW-1 and as such, the case was posted for evidence on defendant side on 08.07.2011. Thereafter, an application under Order I Rule 10 of the Code of Civil Procedure was filed and the said application was disposed off on 17.11.2011. Thereafter, the Court has granted time to lead evidence on defendant side. On 30.11.2011, the application for amendment of the written statement was filed by the defendant and the same was allowed on 21.02.2012 and thereafter, the Court has also granted time to lead defendant side evidence. On 12.04.2012, another application under Order 6 Rule 17 of the Code of Civil Procedure was filed by the present defendant on I.A. No. 8 seeking amendment of the written statement and said application was also allowed by the Court on 18.06.2013. Thereafter, the case was posted for evidence on defendant side and on 29.10.2013, the application to recall PW-1 for further chief was filed by the learned counsel for the plaintiff and said application was allowed by the Court and P.W. 1 was led his further chief and thereafter, the Court has also given sufficient opportunities for cross-examination of PW-1. The defendant has not opted to cross-examine PW-1. Thereafter, on 05.09.2014, an application under Section 151 of the Code of Civil Procedure filed by the defendant seeking recall of PW-1 and said application was allowed on 26.09.2014. On 20.10.2014, PW-1 was not present and as such, it was posted on 31.10.2014. On that date, PW-1 was present, but no representation was made on behalf of the defendant. Hence, cross-examination of PW-1 by the defendant was taken as nil and posted the case for evidence on defendant side on 18.12.2014. Thereafter, the defendant has not appeared on 07.01.2015. On 14.01.2015, the Court has taken the defendant side evidence as nil and posted the case for arguments on 21.01.2015. On that day, when the plaintiff has addressed his arguments, the present application has been filed by the defendant.

After considering the said material dates, the trial court has also recorded a finding that inspite of sufficient opportunities given to the defendant on three to four occasions and allowed application for amendment of written statement filed by the defendant on two occasions and defendant has not taken any steps and he was not due diligent in prosecuting the case and there was no bona fide reasons on the part of the defendant, which clearly shows that he has no interest in prosecuting the case. Considering the entire material on record, the trial court dismissed I.A. No. 13 filed under Section 151 of the Code of Civil Procedure.

It is not in dispute that the defendant is a tenant under the respondent/plaintiff in respect of the property in question. From the order-sheet and the order passed by the trial court on 04.07.2011, it is clear that the application filed by the defendant was allowed for cross-examination of PW-1, which opportunity was not availed by the defendant. Again, for the second time, another application under Order 1 Rule 10 of the Code of Civil Procedure filed by the defendant for cross-examination of PW-1, was disposed off on 17.11.2011. Again the defendant filed an application for amendment of the written statement and the same was allowed on 30.11.2011. Yet again, he was permitted to cross-examine PW-1; but he has not availed that opportunity. Thereafter, one more application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of written statement was filed by the defendant, which was allowed on 18.06.2013.

Inspite of repeated orders by the Court allowing the applications for cross-examination of PW-1 and also for amendment of written statement filed by the defendant, he did not choose to proceed with the case. It is nothing but protracting the Court proceedings. Such a type of litigation cannot be entertained. Hence, the order passed by the trial court is a well reasoned order. Therefore, this Court does not see any ground to interfere with the impugned order.

Accordingly, the writ petition is dismissed with cost of Rs. 2,000/- (Rupees Two Thousand only).