IN THE HIGH COURT OF KARNATARA. ,_ T: BANGALORE
DATED THIS THE 27*" DAY OF_,OCTOBéR.:Q,2O1'IO"
BEFORE.
THE HON'BLE MR. JUSTICE AITN'; xi,EjNi3'a;,OPALA"GOwOA
WRIT PETITIION' F$O.,?;'Q:27_I3/v:?,C1L1'0--AND
WRIT R';T:T1OR'T*ROL303¢;/2oT1O','<fIGM~<:Pc)
BETWEE|\Lg 53:.I- ' A
SR1.
S/O LATE s.s;~SEYED;.,OT.HU.MAN _
AGED A__BO--OT Sow:-AR3 'T _ .. ' -
NO.6S, OLD.:<As--A£'~ROAD«.,_
RAGIPET, - ..
BANGALORE'-«.560 O02.
5 " I. _ ' PETITIONER
'' {B§?''sRf'''''O,AEMATHARIJRA, ADV.)
s R SHIVAPRASAD
' S'/O LATE 5 R RAMAIAH SETTY
"AGED ABOUT 57 YEARS
No.59, UPSTAIRS,
MIDDLE SCHOOL ROAD
' V.V.PURAM,
BANGALORE -- 560 004.
2 M/S MOHIADEENIYA HARDWARE,
A PARTNERSHIP BUSINESS CONCERN
HAVING ITS OFFICE N065,
OLD KASAI ROAD,
BANGALORE 560 902.
REP. BY ITS PARTNERS
a) s s MOHIADEEN THAMBY
b) S.O.SULAIMAN LEBBA
c) S.O.NAJIMUDEEN
1,A'N ' A
PARTNER OF?/_l_)'S :=»a.O'R.1ADEENzvA HARDWARE
No.65, AAOLD'-+<A':;A1 ROAD
_ BAN§"A.LOF?.EjS60=.OO'2';
" S N_A3zMU'DvEEA~
PARTNER OF M/S MOHIADEENIYA HARDWARE
4 N.O;-55«,_C':L.D KASAI ROAD
* 3AN§ALOVR;E--560 002.
A s,vO.'S'A--2OL ASE-{AB
PARTix¥ER OF M/S MOHIADEENIYA HARDWARE
"i\£O}6S, OLD KASAI ROAD
BANGALORE» 560 002.
V.I.SEGU MOHIADEEN
PARTNER OF M/S MOHIADEENIYA HARDWARE
NO.65, OLD KASAI ROAD
BANGAL.ORE~ 560 002.
MOHAMMAD ALI
EX-PARTNER OF M/S MOHIADEENIYA HARDWARE
SINCE DECEASED BY HIS LRS
(i) MRS SOLJBHAN ALI
(aa) MUSTAFA
NO.65, OLD KASAI ROAD
BANGALORE~56O O02.
(BY SRI V.B.SHIVAKUMAR, AD\V/g.')_'
RON
THESE WRIT PETITIONs""ARE» FILED..VUNDER"*ARTICLEs
226 AND 227 OF THE CONSTIT_U._TIO_N=.QF INDIA RRAYINC; TO
QUASH THE ORDER" ~.__DATED " e.1j8.8'.=2010, PASSED IN
OS.NO.261/2009 ON I.A;-Nos. '.11;_&1'2--.'eY'THE COURT OF THE
III ADDL. CITY CIVIL JUDGE,»BAN{3ALORE=_CITY [CCH~25]
PRODUCED AS Ai\iNEXURE~--, _|-'i.A'i~i.Di.,DI'R'ECT'=T'O ALLOW THE (1)
APPLICATION NO.«1I..1U/(3.13 RULES~..3--.._& 8 'R/w S.151 OF CPC.,
FOR RE:IECTIOiN (jf-..i'DOC';jM1ENTS MAR'iP1.IC,ATIiON NO.12, U/0.18 RULES
16 & 1'7 R/w.;s_.1s::. OF 'CFC FOR REJECTING THE PW-1 FOR
CROSS,EXA-r«IIVNVTIVONT _F'I~i._ED..sEEORE THE COURT OF THE III
ADDL. 'CITY €'.I\'/TL', JUD'c.;E,..- BANGALORE CITY [CCH-25}
PRODUCEDAS AN'NE"><URES----: D & E.
;-THESE" A-PAETIITIONSCDMING ON FOR PRELIMINARY
HEARING' IN B' "GRQ.UP THIS DAY, THE COURT MADE THE
' V' - FOVL'LOVi!I':\iGi':..'A
ORDER
Vi Respondent 1/plaintiff has instituted suit for
ejectnient against the petitioner and respondents 2 to 8.
“A”_Fh»efA’petitioner is the 6″‘ defendant in the suit and has filed
his written statement. Issues having been framed, suit
was posted for trial. Plaintiff deposed as PW.1. He filed a
list of documents dated 1.12.2009 and produced the
documents, which were not filed along with the plaint. The
‘V./’
/.
documents produced by the plaintiff have
through PW.1 i.e., Exs.P1 to P23:».Petit§eher7«i»»ied v4’I;’A.’i9.
under o.13 Rs.3 and 8 r/W -sV.15i’i.ci2cV for”r,ej:ectVit):§n hor_:’f.
documents i.e., Exs.P1, and” to} P23 as
inadmissible and to to ‘strike of the
examination of under 0.18
RS-16 and f.or::re.caii’i’ng PW.1 for further
fiied statement of
objections’ .orsVV1′;15.7.2o10. The Trial Court
upon co’r.sijdera’ti<3.n':*uo'f applications, finding them to
be devoid oft-»rrie'rit, has passed a common order dated
"dr13 .'e,t2o'1Ao{'r=.y_heree§2; it has rejected :.As.11 and 12 with
tfieste; iraTA.g'g}.;Aegied, the defendant 6 has filed these writ
pedHons;,?
;Sri D.Aswathappa, learned counsel appearing for
it’i.t’h’e.:petitioner firstly contended that, the there is non
….:ipplication of mind with respect to the documents
produced by the plaintiff, which were in existence prior to
the filing of the suit and not produced along with the
/f
‘ t.
plaint. He submitted that, permitting the
such documents is contrary to the provisiVon’s..,.u’nAd’er O”.–17l_,
R.14, o.13 R.1 and the decision ii{th:e'<c,ase oi,li$jiAisi.i,ui$iVpA«
SETFY vs. TALLAM SUBBARAYA: S.,'E"i"l'Y"{t_l_'¥5"?. 2fpo4 KAR
924). Secondly, by’-«._.refusingi_v.to=._’,i'<_am'ivne and place his side of
evidence._ .1115VliE",$I,;l§mitte"C}-__t)y the learned counsel that, the
cause S'hQi/iin in support of I.A.12 has not
iJee4r,i'Co.nsiduei*e,d_"iri the correct perspective and a pedantic
""apvp'roaE"c"ih been adopted in the matter. Learned
I that the impugned order is irrational and
illegal. i .
.. .3;–«:Sri V.B.Shiva Kumar, learned counsel appearing
it ‘~f_or– the 13’ respondent on the other hand, by taking me
-mthrough the impugned order submitted that, the Trial
Court has considered I.As.11 and 12 in the correct
perspective and in view of the continued default on the
_,,,r’
part of the petitioner in the matteruof cross”exafhin’a:tiopn ‘* it
PW.1 and in adducing his side of:’evid-enceéfthei TrialVfC._pu;;f_tt
being left with no other altern’a.tive,V2clo’sed ‘..tr.iialmol%’
suit and has posted the suit foV:r””h,ea–ri»ng”of arguments.
Learned counsel t.hat;_»,~A;.t’h.eIpetitioner has not
avaiied the oppo_rtunity»« irial Court and
the case of de_nial.::_4otViirheiasoinable opportunity.
Learned in view the amended
provisi:ons_ Emsnuigned order cannot be
overturned.’ , C ‘
have peruseid the writ papers.
5.,V4″~Ti1e”‘v_point for consideration is: whether the
coin-mo.n’ aijdervipassed by the Trial Court on I.As.tt1 and 12
Q is irtational and iilegai?
it 6.”There is no dispute that, after the suit was posted
for filing of list of witnesses and documents, the plaintiff
mtiied list of documents.’ On the day, the list with
documents were filed, defendant 6 has appeared in the
Court. The piaintiff has deposed and when the documents
_’a-H’
/.1
were marked for the piaintiff onm{i.1.20.1’t’3;v~-:th.e”!earne:d
counsel appearing for defendantsifi and not o’bj’-ectedi
for the marking of documents.’«.__HenVce.,it is
Petitioner to contend that, not to
have been ailowed marked in the
evidence of the piainti:ff».- ‘been convinced
that, the the piaintiff are
necessaryifigi-5rad:i’ud”iC_ati’o:rj rnatter, exercising the
discretion__V permitted the piaintiff
to prociiucethe The provision with regard to
thegprcductionofxdocurrients along with pieadings is not
and Court in exercise of its discretion,
ke.epiiAngfi–.n»”view’ the facts and circumstances of the case,
cai’i«r..peVrmit§the production of documents at a subsequent
stageiiofthe proceedings in the suit. No prejudice as such
” occasion to the petitioner since the petitioner has the
_,._opportunity to cross–examine the piaintiff even with regard
to the documents which have been produced and marked.
Hence, no interference with the order passed on I.A.11 is
caiied for. ks
/M’
/”
7. with regard to prayer in I.A.12 is concerned,’».the
record wouid indicate that the p:’e4titi:o’neir ha.s’..’n’ot”‘a:t:.aiie,d*’
the opportunity of cross~exaVrnination’-oft’ Thowtlwgh
Trial Court has granted oppo4_r”tdnity_, has not
been availed. Howeiur;-r,’ grant another
opportunity to the undertaking
given to of hearing, if
PW.1 a’p_pears:-tenvdiiii available for cross~
examined and that there
couid he time bound disposal of the
matter’,_without_VgoingV’ into merit of the submissions made
sides, Ideern it appropriate to provide finai
.AV.fVvC>.~:”the petitioner for cross–examination of
PW’;-1. the order passed on I.A.12 is required to be
set aside’.
-7-‘tn View of the foregoing, W.P.30275/2.010 stands
– ,,..dismissed and W.P.30512/2010 stands allowed subject to
the condition that, the petitioner/defendant 6 shaii cross
examine PW.1 on 27.11.2010 and cross–examination of