Sri Gurugundabramheswara Swamy Deity vs Girishkumar

Aravind Kumar, J.—Plaintiffs in O.S. No. 1 of 1996 being aggrieved by order dated 18-9-2015, Annexure-H, rejecting their Interlocutory Application Nos. 24, 25 and 26 filed for production of documents, recall of P.W. 1 and reopening of case, are before this Court assailing the said order.

Petitioners have filed the suit in question under Section 92 read with Order 7, Rules 1 and 2 of Civil Procedure Code, 1908 for framing a scheme for proper administration of Institution of Sri Gurugunda Bramheswara Swamy Diety situated at Pattanayakanahalli Village, Sira Taluk and also for management of finances of institution according to pious and charitable intention of donors; for permanent injunction to restrain the defendants from in any manner interfering with plaintiffs or other devotees from entering or performing pooja (worshipping) of Sri Gurugunda Brahmeshwara Diety situated therein.

On service of suit summons defendants have appeared, filed their written statement, contested the suit. On the basis of pleadings of parties Trial Court has framed issues on 24-3-2004 and in order to prove the issues both parties to suit have already tendered their evidence. When the matter was set down for final arguments, applications in question have been filed by plaintiffs. Said applications namely Annexures F, F1 and F2 came to be resisted to by defendants by filing objections as per Annexures-G1 and G2 respectively. Trial Court after considering the objections filed by defendants to said applications and after hearing rival contentions of learned Advocates appearing for parties, Trial Court by impugned order has dismissed the applications for reasons more than one namely; applications are filed belatedly; reasons given by the plaintiffs that they did not consult their Advocate on time and give instructions, is not acceptable; reason assigned itself would indicate that plaintiffs have not been diligent in prosecuting the case; there are no pleadings and issues on the alleged facts that plaintiffs proposed to place on record by way of evidence that would assist the Court to arrive at a conclusion and as such, on these grounds Trial Court has rejected the applications.

It is the contention of Sri Jayavittal Kolar, learned Senior Counsel appearing for petitioners that impugned order is a non-speaking order and except assigning the reason that there is a delay, no other reason is indicated in the impugned order; learned Judge has not applied his mind and arbitrariness is writ large on the face of impugned order; a Presiding Officer of this cadre while considering the applications filed for production of documents, recall of witness and reopening of case cannot have pedantic approach as has been done and as such, on these grounds he contends impugned order is liable to be quashed. He would also elaborate his submission by contending that question of delay would recede to background when documents are sought to be produced, which have come into existence during the pendency of suit and it is the relevancy of documents which ought to have been considered and not the question of delay and these documents being required for proving the contentions raised in the plaint are essential and it would throw light on the plea put forward by plaintiffs in their suit and as such, Trial Court ought to have allowed these applications.

He would also contend that this Court in exercise of supervisory jurisdiction has power to set aside the order which is patently illegal and which is based on clear ignorance of law and where such orders are passed in utter disregard of provisions of law and even in case where there would be grave injustice and gross failure of justice if the applications are not considered by the Courts below in proper perspective. In support of his submission he has relied upon following judgments:

(i) Nanjunda Setty alias N.S. Tallam and Others v. Tallam Subbaraya Setty and Sons and Others, ILR 2004 Kar. 924;

(ii) Surya Dev Rai v. Ram Chander Rai and Others, (2003) 6 SCC 675.

Per contra, Sri V. Sreenidhi, learned Counsel appearing for respondent 1 would support the impugned order and contends that documents sought to be produced have no relevancy to the facts of case and it has no bearing whatsoever on the issues framed by Trial Court and they are not required for being looked into for adjudicating the issues framed. He would also submit that when Trial Court has found that there is no diligence on the part of plaintiffs and said diligence is not supported by any cogent reason as to why these documents were not produced at earlier point of time, Court below was fully justified in rejecting these applications and there is no error committed by Trial Court in rejecting these applications. He would further elaborate his submission by contending that until and unless there are compelling circumstances for reopening and recall or permitting the party to produce the documents, Courts should not allow such applications as a matter of course, as otherwise the very provision of Order 18, Rule 17 would stand defeated and in the instant case, plaintiffs having not made out any compelling circumstances for producing these documents and said documents having no relevancy to the facts of case, Trial Court was fully justified in dismissing the applications and as such, question of allowing writ petitions would not arise. Hence, he prays for dismissal of writ petitions. In support of his submission he has relied upon the following judgments:

(i) M/s. Bagai Constructions through its Proprietor, Lalit Bagai v. M/s. Gupta Building Material Store, AIR 2013 SC 1849.

(ii) N.M. Viswonath v. B.V. Nanjundappa (since dead) by L.Rs and Another, 1995(5) Kar. L.J. 273;

(iii) Smt. Pillamma and Others v. Smt. Munithayamma and Others, 2016(1) KCCR 337.

Having heard the learned Advocates appearing for parties and on perusal of impugned orders as well as interlocutory applications in question, objections filed thereto and pleadings, this Court is of the considered view that following points would arise for my consideration:

(i) Whether Court below was justified in rejecting the applications for production of documents, reopening the case and recall of PW. 1 filed by plaintiffs?

(ii) What order?

At the cost of repetition, it requires to be noticed that suit in question has been filed in the year 1996 for framing of Scheme. Defendants have appeared, filed their written statement, contested the suit and on the basis of pleadings of the parties Trial Court has framed issues way back in the year 2004 i.e., on 24-4-2004. Thus, both parties were very well aware, conscious and knew fully as to the extent of burden placed on them for being discharged. It is in this background, both parties i.e., plaintiffs and defendants have got themselves examined and they have also examined their witnesses to substantiate their respective claims. It is not in dispute that matter was at the stage of arguments on behalf of defendants, which had also been addressed to and at that stage, applications in question have been filed.

Perusal of applications filed by plaintiffs under Order 7, Rule 14 of CPC, Annexure-F, would indicate that in all 13 documents were sought to be produced and one of the document is a Gazette Notification and proceedings of November 1889 and May 1888 (oldest document) and the latest document is dated 12-6-2013 at SI. No. 6, which is an endorsement issued by Tahsildar, Sira. Evidence of P.W. 1 was concluded on 8-8-2005. Evidence of plaintiffs witnesses namely P.Ws. 2, 3 and 4 was concluded on 28-10-2005. It is thereafter defendant has commenced his evidence and D.W. 1 on 6-12-2005 and concluded on 7-3-2009. Recording of evidence of witnesses on behalf of defendants came to be concluded in the year 2010. In fact plaintiffs had sought for examining one more witness which was permitted namely, P.W. 5 on 20-1-2005 and thus, recording of evidence was concluded during the year 2010. I.A. Nos. 16,17 and 18 were filed by first defendant, which came to be allowed by common order on 21-10-2013 and two witnesses were examined on behalf of defendants namely, D.W. 3 and D.W. 4, which was during the year 2013.

During this period, an application - I.A. No. 15 came to be filed by plaintiffs under Order 23, Rule 1 of CPC seeking withdrawal of said suit. Said application came to be dismissed by Trial Court vide order dated 3-2-2012 and this Court in W.P. No. 19286 of 2013 by order dated 5-3-2015 affirmed said order of dismissal. Thereafter, applications came to be filed under Order 7, Rule 14 of CPC, as noticed herein above, which was for production of 13 documents, recall of P.W. 1 of reopening of the case. It it; no doubt true that subsequent to amendment of C PC'' by 2002 Amendment, issue of delay may not acquire much significance in the event of applicant is able to demonstrate as to how the documents are relevant for the purposes of adjudicating issues in question and explain with sufficient reasons as to the person who was in possession of said documents and why said documents could not be produced at an earlier point of time. To put it differently applicant has to establish his diligence, as otherwise rigour of Orders XVII and XVIII of CPC would get defeated, inasmuch as, once trial has commenced it has to reach its logical end and as such, parties cannot be allowed as a matter of right to file applications either for reopening of the case or recalling of witnesses already examined or production of documents without exhibiting the diligence with which they have acted upon.

Hon''ble Apex Court in the case of K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, has held that it is always open to the Trial Court to consider in the interest of justice and to prevent abuse of process of Court whether it is necessary to reopen the case and if it is to be reopened, in what manner and how the parties are to be put on terms. Said exercise is to be undertaken keeping in mind the sound principles laid down in catena of judgments by this Court and Apex Court.

Hon''ble Apex Court in the case of M/s. Bagai Constructions has held that the power conferred upon the Court under Order 18, Rule 17 of CPC can be used either on application of parties or suo motu but it has to be used sparingly in appropriate cases and witnesses cannot be recalled or re-examined merely on the ground that no prejudice would be caused to other side. The word of caution expressed by Apex Court that such power if used in reopening of a case as a matter of course, it would defeat the very purpose of the amendments brought to CPC. However, where applicant is able to establish that applicant had acted in a bona fide manner and not with the intention of stalling the proceedings or dragging on proceedings or adopting delay tactics and tendering of such further evidence would be very much essential for issues in quest ion being adjudicated and also noticing that non-production of such evidence at an earlier point of time was on account of a genuine cause or reasons assigned for non-production of such evidence at an earlier point of time was due to a bona fide reason and not tainted with mala fides, then certainly Court can receive such evidence, reopen the case and recall the witness, as otherwise not. It has been held therein as under:

"9. In Vadiraj Naggappa Vernekar (deceased) by L.Rs v. Sharad Chand Prabhakar Gogate, AIR 2009 SC 1604, this Court had an occasion to consider similar claim, particularly, application filed under Order 18, Rule 17 and held as under: (SCC pp. 414 and 415, paras 25, 28, 29 and 31)

"25. In our view, though the provisions of Order 18, Rule 17 of CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

....

The power under the provisions of Order 18, Rule 17 of CPC is to be sparingly exercised and in appropriate cases and not as a genera] rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18, Rule 17 of CPC.

It is now well-settled that the power to recall any witness under Order 18, Rule 17 of CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated herein above, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.

......

Some of the principles akin to Order 40 VII of CPC may be applied when a party makes an application under the provisions of Order 18, Rule 17 of CPC, but it is ultimately within the Court''s discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out."

.......

In the case of K.K. Velusamy N. Palanisamy, (2011)11 SCC 275, even after considering the principles laid down in Vadiraj Naggappa Vernekar''s case and taking note of Section 151 of CPC, this Court concluded that: (K.K. Velusamy''s case, SCC p. 286, para 22)

"22... in the interests of justice and to prevent abuse of the process of the Court, the Trial Court (is free to consider) whether it was necessary to reopen the evidence and if so, in what manner and to what extent...."

Further, it observed that the evidence should be permitted in exercise of its power under Section 151 of the Code. The following principles laid down in that case are relevant: (K.K. Velusamy''s case, SCC p. 285, para 19)

"19. We may add a word of caution. The power under Section 151 or Order 18, Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where in application is found to be bona fide and where the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice, and the Court is satisfied that non-production earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The Court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the Court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.""

(emphasis supplied)

Keeping the principles laid down by Apex Court in mind when the facts on hand are examined if can be noticed that after conclusion of plaintiffs evidence way back in the year 2005 plaintiffs had filed an application namely I.A. No. 15 for withdrawal of the suit by invoking Order 23, Rule 1 of CPC. Said application came to be dismissed by order dated 3-2-2012 and same was questioned before this Court in VV.P. No. 19286 of 2013. This Court noticed that order of dismissal of application was just and proper and when the suit had reached penultimate stage of hearing of final arguments and nature of suit being in the representative capacity, order declining to withdraw the suit was rightly passed by Trial Court and as such, it came to be held by this Court that considering the plea of plaintiffs to withdraw suit on technical ground would be impermissible.

In the above background, when the documents sought to be produced by plaintiffs is perused, it would indicate that these are the documents which are well within the knowledge of plaintiffs at all points of time. There is no explanation whatsoever as why these documents were not produced earlier. Affidavit supporting the application is as vague as vagueness could be.

No reasons are forthcoming as to why these documents were not produced, either when P.W. 1 was examined or other witnesses were examined. Though delay may not have much significance, this Court cannot loose sight of the fact that plaintiffs have been pursuing their grievance before various authorities including Civil Court for a scheme being framed by Court below and as such is expected to be diligent. Hence, reasons ought to be assigned as to why these documents were not produced at earlier point of time. It is not in dispute that between the same parties there are proceedings before Revenue Authorities in progress and also before jurisdictional Magistrate where a private complaint is said to be pending and as such the plaintiff cannot feign ignorance about not being conversant with the Court procedure particularly when they are assisted by their learned Advocates before Trial Court. The reasons assigned in the affidavit that they are illiterate and they were searching for more documents and as such they could not consult their Counsel on time and give instructions to file the applications in question is clearly an afterthought made with an intention to keep the lis pending without any justifiable cause. The reasons assigned cannot be construed as bona fide but it is a clear case of mala fide intention namely with an intention to protract and drag on the proceedings plaintiffs are filing such applications. In fact suit in question is pending from the year 1996 and plaintiffs having failed in all their attempts by filing applications after applications and being aware of the fact that the suit may fail, had filed an application under Order 23, Rule 1 of CPC to withdraw the suit and said application also having been dismissed and said order has reached finality by virtue of Trial Court order being affirmed by this Court in W.P. No. 19286 of 2013 on 5-3-2015 has now attempted to file these applications. As such plaintiffs cannot be heard to contend that they have been diligent in prosecuting their case before the Court below.

Even on merits if the claim of the plaintiffs is examined it would not detain this Court for too long to reject the contention since documents sought to be produced does not have any nexus or bearing to the issues in question being resolved. Plaintiff is seeking tor a scheme being framed in respect of a trust and Jurisdictional Court while examining the issue regarding framing of a scheme would not embark upon conducting an enquiry with regard to title of the property. In fact one of the reason assigned by plaintiffs for production of the document in question is on the ground that 1st defendant is attempting to prove his title before the District Court. Scope of the relief in a scheme suit being very limited and relief of declaration cannot be sought in a scheme suit and as such documents sought to be produced by plaintiff to stave of such claim of defendants have no bearing or nexus to the controversy. Plaintiff also does not assert or state as to how these documents are relevant or necessary for the issues framed by Trial Court is to be adjudicated. The issues framed by Trial Court is made available by learned Counsel appearing for respondent/defendant during the course of his arguments and same has been perused by this Court. The burden which has been cast on the plaintiff to prove are issues 1, 2, 4, 5, 11 and 12. Documents which are sought to be produced namely the mutation register entries, endorsement issued by jurisdictional Tahsildar and proceedings before the Principal Secretary'', Department of Revenue would in no way either support the plaintiffs or demolish the case of defendants. However no opinion is expressed on said orders inasmuch as it is stated that the issue is now pending before Revenue Authorities and it is for the said authorities to look into the matter and pass appropriate orders on merits and in accordance with law. Since this Court is of the view that documents sought to be produced having no relevance to the controversy it would in no way prejudice the claim of plaintiffs if these documents are not brought on record. Hence, question of permitting plaintiff to tender further evidence does not a rise. Trial Court while examining prayer of plaintiff has in a nut-shell considered these aspects and has stated these documents are not relevant and as such contention of learned Senior Counsel that there is non-application of mind by Trial Judge cannot be accepted and same stands rejected. By no stretch of imagination it can be construed that impugned order is passed in a pedantic manner or without application of mind. There is no error committed by Trial Court in rejecting the application. Point No. 1 is answered against petitioners and in favour of respondents.

Re: Point No. 2:

The Hon''ble Apex Court in the case of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011) 8 SCC 249, has held that:

"In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court''s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases. The credibility of the entire judiciary is at stake unless effective remedial steps are taken without further loss of time and to prevent the delay in civil litigation the Hon''ble Apex Court has suggested steps to be taken by Trial Court while dealing with civil trials and it reads as under:

A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the Trial Judge to carefully scrutinise, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.

B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the Court in arriving at truth of the matter and doing substantial justice.

C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity'' of judicial proceedings.

D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.

E. The Courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.

F. Litigants who obtained ex parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the Court.

G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the Trial Court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the Courts should strictly adhere to the said dates and the said timetable as tar as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed."

It is also observed that while imposing costs Courts should take into consideration the pragmatic realities and he realistic as to what the defendants or respondents had to actually incur in contesting the litigation before different Courts. Further it has been held that Court has to broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, Court fee etc., apart from other factors like for how long the respondents were being compelled to contest and defend the litigation in various Courts while imposing costs.

In the light of the dicta laid down by Apex Court when facts on hand are examined it would indicate that plaintiffs have filed the suit for framing of a scheme way back on 3-1-1996 and they have kept the kettle boiling for past 20 years. To put it differently they have ensured that for the past 20 years the suit has proceeded at a snail''s pace. Though it cannot be held that plaintiff had adopted dilatory tactics, it can be safely held that plaintiffs have been protracting the proceedings in order to ensure that the litigation is kept alive and kicking. As held by the Apex Court in the case of Ramrameshwari Devi prolonging the trial by filing frivolous applications requires to be dealt firmly and realistic cost should be imposed on such litigants when such applications are being rejected. In the instant case this Court is of the considered view that plaintiffs having failed in their attempt to withdraw the suit by filing I.A. No. 15 under Order 23, Rule 1 of CPC and said order having reached finality on 5-3-2015 and plaintiffs having come to the dead end of the road have filed these three applications to produce 13 documents out of which one of the document is of the year 1888. This would only indicate that plaintiffs intend to protract the proceedings and to ensure that a decision on merits is not rendered. Undaunted by order of dismissal of their applications they have pursued their grievance before this Court and have compelled the 1st respondent to defend the impugned order by expending time, money and energy. In that view of the matter this Court is of the considered view that petitioners are to be mulcted with exemplary costs.

For the reasons afore stated this Court proceeds to pass the following:

ORDER

Writ petitions are hereby dismissed with costs.

Order dated 18-9-2015 passed by Principal District and Sessions Judge, Tumakuru in O.S. No. 1 of 1996 at Annexure-H is hereby affirmed.

Petitioners to pay cost of Rs. 25,000/- to 1st respondent within six weeks from today. Trial Court shall include the same as costs in the decree that would be drawn and 1st respondent would be at liberty to recover the same by executing the said decree against the petitioners herein.

Since suit is of the year 1996, Trial Court shall make all endeavour to dispose of the suit expeditiously at any rate on or before 30-7-2016 subject to both parties co-operating with Trial Court. In the event of either of the parties without satisfaction of Trial Court were to seek for any adjournment, Trial Court would be at liberty to regulate its proceedings by imposing such costs as it deems fit.