SRI S. J. SHIVAKUMAR vs SRI K. SATHISH KUMAR

The defendant has filed these writ petitions praying to quash the order dated 16.1.2018 made on I.A. Nos. 13 and 14 in O.S.No.94/2014 on

the file of the Additional Senior Civil Judge and MACT, Srirangapatna rejecting the applications filed by him under Section 151 and Order XVIII

and Rule 17 of the Code of Civil Procedure respectively.

The respondent who is the plaintiff before the trial Court filed a suit for recovery of a sum of Rs.6,55,000 together with interest at 18% per

annum from the date of suit till date of realization on the ground that the defendant-petitioner had borrowed the said amount from him and inspite of

repeated demand and notice, the defendant-petitioner failed to pay the same. Therefore, he filed the suit for the relief sought for.

The defendant filed his written statement denying the entire plaint averments and contended that he never borrowed the loan as alleged and

hence, sought for dismissal of the suit.

After completion of the evidence and when the matter was posted for arguments, at that stage, the defendant filed two applications - I.A. 13

under Section 151 of the Code of Civil Procedure to re-open the case and permit him to further cross-examine P.W.1 and I.A.14 under Order

XVIII and Rule 17 of the Code of Civil Procedure to recall P.W.1 for further crossexamination contending that when the matter was posted for

arguments, it is necessary to put some material questions on the evidence adduced by the plaintiff in CC 449/2012 and 454/2012. Therefore, it is

very much necessary to re-open the case, recall P.W.1 and permit him to further cross-examine P.W.1 in the interest of justice.

The said applications were opposed by the plaintiff, the trial Court considering the applications and objections, by the impugned order dated

16.1.2018 dismissed the applications, against which, the present writ petitions are filed.

I have heard the learned Counsel for the parties to the lis.

Sri V. Srinivas, learned Counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the applications -

I.A.13 filed under Section 151 as well as I.A.14 filed under Order XVIII Rule 17 of the Code of Civil Procedure for reopening the case for

further cross-examination of P.W.1 and to recall P.W.1 for further cross-examination, is erroneous and contrary to the material on record. He

further contended that in CC 449/2012 and CC 454/2012, the plaintiff has given certain admissions which are vital points to be urged in the

present case and the same has not been considered by the Court below. He further contended that the suit filed for recovery of Rs.6,55,000/-, the

trial Court ought to have given an opportunity by imposing some costs, but the same has not been done. Therefore, he is before this Court seeking

to quash the impugned order by allowing the present writ petitions.

Per contra, Smt. M.N. Vijaya, learned Counsel for the respondent-plaintiff sought to justify the impugned order and contended that inspite of

granting sufficient opportunity, the defendant has not availed the same and hence, sought for dismissal of the writ petitions.

Having heard the learned Counsel for the parties, it is not in dispute that the respondent-plaintiff filed a suit for recovery of a sum of

Rs.6,55,000/- against the defendant on the ground that the defendant had borrowed the said amount but the same has been denied by him by filing

written statement. It is also not in dispute that when the matter was posted for arguments that too after completion of evidence, at that stage, the

defendant filed two applications - I.A.13 under Section 151 of the Code of Civil Procedure and I.A.14 under Order XVIII Rule 17 of the Code

of Civil Procedure to reopen the case; recall P.W.1 and permit him to further cross-examine P.W.1 mainly on the ground that the plaintiff had

made certain admissions in C.C.Nos.449/2012 and 454/2012 and therefore, it is necessary to recall P.W.1 and to put some material questions on

him in support of his case. Though several opportunities were given to the defendant, he has not availed the same. Hence, the trial Court rejected

both the applications mainly on the ground that the applications are filed at the fag end of the trial which itself shows that it is only to drag the

proceedings.

Taking into consideration that the rights of the parties are involved in a suit for recovery of a sum of Rs.6,55,000/- an opportunity ought to

have been given by the trial Court rather than dismissing the application on technicality. When substantial justice and technical considerations are

pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being

done because of a non-deliberate delay. There is no presumption that the delay is occasioned deliberately, or on account of culpable negligence, or

on account of mala fides. A litigant does not stand to benefit by resorting to delay. It must be grasped that judiciary is respected not on account of

its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

This Court is aware of the fact that in the later judgment in the case of Gayathri -vs- M. Girish reported in (2016)14 SCC 142, it has been

held that the proceedings should not be dragged by the litigant for repeated adjournments but in the present case, the suit is filed in the year 2014

and the applications are filed when the matter was posted for arguments and hence the trial Court ought to have given an opportunity to the

defendant to substantiate his case for further crossexamination of P.W.1 by putting certain questions pertaining to Criminal Case Nos. 449/2012

and 454/2012 imposing reasonable costs. Admittedly, in the present case, allowing the applications will in no way prejudice the case of the plaintiff

nor changes the character or nature of the suit, but the same has not been done in the present case. Hence, the trial Court ought to have allowed

the applications.

In that view of the matter, this Court is of the considered opinion that, an opportunity should have been given to the defendant to putforth his

case by recalling P.W.1 and permitting him to further crossexamine P.W.1 by imposing costs of Rs.5000/- to compensate the plaintiff.

For the reasons stated above, writ petitions are allowed. The impugned order dated 16.1.2018 made on I.As. 13 and 14 in O.S.No.94/2014

rejecting the applications is quashed. Consequently, I.As. 13 and 14 filed by the defendant are allowed subject to payment of costs of Rs.5,000/-

by the defendant to the plaintiff on the next date of hearing before the trial Court and the defendant is directed to crossexamination of P.W.1 on the

next date of hearing without fail i.e., on 14.2.2018 or any other date to be fixed by the trial Court after receipt of a copy of this order, failing which,

the trial Court shall proceed with the case in accordance with law.