Smt. Amita J. S. Kakodkar and Shri Jayant Kakodkar vs Shri Nagraj Kale and Smt. Sadhana Nagraj Kale

A. P. Lavande, J.—Heard Mr. Mulgaonkar, learned Counsel for the petitioners and Mr. Sardessai, learned Counsel for the respondents. Constitution of India, the petitioners challenge the order dated 30th September, 2010 passed by the Civil Judge, Senior Division, Margao in Special Civil Suit No. 124/2009/II by which the application dated 22nd December, 2009 filed under Order 10 Rule 1 of C.P.C. for examination of defendant no.1 has been dismissed.

The petitioners herein filed the above suit on 13th August, 2009 against the respondents seeking permanent injunction, eviction and mesne-profits. The defendants filed written statement on 3rd November, 2009. On 22nd December, 2009, the plaintiffs filed an application seeking examination of defendant no. 1 on the ground that the written statement filed by defendant no.1 was vague and evasive. The application was opposed on behalf of the defendants. By the impugned order dated 30th September, 2010, the learned trial Court dismissed the application on the ground that the defendants have dealt with the plaint parawise. The trial Court treated the application to be one under Order 10, Rule 2 of C.P.C. and held that since the defendants have dealt with the plaint parawise, no case was made out for examination of defendant no. 1.

Mr. Mulgaonkar, learned Counsel appearing for the petitioners / plaintiffs submitted that although specific provision has not been mentioned in the application, the application filed by the plaintiffs was under Order 10 Rule 1 of C.P.C. He further submitted that the trial Court has not dealt with the application on the grounds germane to Order 10 Rule 1 of C.P.C. and has dismissed the application on the grounds which are patently untenable in law. Mr. Mulgaonkar further submitted that although issues have been framed by the trial Court on 7th March, 2011, the plaintiffs cannot be non-suited since the petitioners filed the petition on 4th December, 2010 and as such, Mr. Mulgaonkar submitted that merely because the issues are framed, the application under Order 10 Rule 1 of C.P.C. is still maintainable. Mr. Mulgaonkar placed reliance upon the judgment of the Apex Court in the case of Kapil Corepacks Pvt. Ltd. and Others Vs. Shri Harbans Lal (since deceased) through Lrs., in support of his submission that the trial Court ought to have allowed the application and directed examination of defendant no.1. Mr. Mulgaonkar also placed reliance on the judgment of the learned Single Judge of this Court in Onkarmal Bachhraj through Partners Vs. Kum. Priti, . Mr. Mulgaonkar submitted that in the said case the application was filed after framing of the issues and as such, the learned Single Judge was perfectly justified in holding that the application filed under Order 10, Rule 2 of C.P.C. was not maintainable.

Per contra, Mr. Sardessai, learned Counsel for the respondent submitted that since issues have been framed on 7th March, 2011 in the suit, the application filed under Order 10, Rule 1 of C.P.C. cannot be granted at this stage since it is settled legal position that the party cannot be examined under Order 10, Rule 1 of C.P.C. after issues are framed. Mr. Sardessai further submitted that the plaintiffs themselves submitted draft issues on 2nd November, 2010 and as such, the conduct of the petitioners clearly disentitles them from getting any relief in the present petition in as much as the petitioners/ plaintiffs at no point of time requested the trial Court not to frame issues, but on the contrary assisted the trial Court in framing of the issues by submitting draft issues on 2nd November, 2010. Mr. Sardessai lastly, therefore, submitted that the issues having been framed, no interference is warranted even if the reasons given by the trial Court for passing the impugned order are unsustainable.

I have considered the rival submissions and perused the record and the judgments relied upon.

There is no serious dispute that once issues are framed, the trial Court cannot direct examination of the parties under Order 10 Rule 1 or Rule 2 of C.P.C. In the case of Onkarmal Bachharaj (supra) relied upon by Mr. Mulgaonkar, the learned Single Judge has held that the provisions of Order 10 Rule 2 of C.P.C. are operative till the issues are framed. No doubt, in the said case, the application was filed after the issues were framed and as such, the learned Single Judge held that the application was not maintainable. Having regard to the language of Order 10 Rule 1 of C.P.C., it is evident that the jurisdiction under said rule can be exercised only before the issues are framed and I am, therefore, not in agreement with Mr. Mulgaonkar that the trial Court is divested of its jurisdiction to examine the party after the issues are framed. No doubt, the petitioners/ plaintiffs cannot be blamed since they filed the petition in time. However, the fact remains that no interim order was granted in favour of the petitioners. Moreover, as rightly submitted by Mr. Sardessai, the petitioners/ plaintiffs themselves submitted draft issues on 2nd November, 2010. This conduct on the part of the plaintiffs clearly disentitles the plaintiffs from seeking the relief at this stage when the issues have been already framed.

Since the issues have been already framed, I am not inclined to exercise supervisionary jurisdiction under Article 227 of the Constitution of India against the impugned order. I, therefore, do not deem it necessary to go into the question as to whether the impugned order passed is legally sustainable or not. I, therefore, do not deem it necessary to refer to in detail the authority relied upon by Mr. Mulgaonkar in the case of Kapil Corpacks Pvt. Ltd. (Supra) which deals with the parameters within which the trial Court can exercise the jurisdiction under Order 10, Rule 1 of C.P.C. In view of the above, I do not find any ground to interfere with the impugned order. Hence, the petition is dismissed. No order as to costs.