R. Raghu Vs. G.M. Krishna and Another - Court Judgment

Excerpt:
(prayer: this petition is filed under article 227 of the constitution of india, praying to call for the records of misc. petition no.157/2014 pending on the file of the 1st additional district and sessions judge, bengaluru rural district and dismiss the petition as being barred by law; declare that the 1st addl. district and sessions judge, bengaluru rural district, has no jurisdiction to entertain misc. petition no.157/2014 instituted under section 47 of the cpc, 1908; declare that the institution of misc. petition no.157/2014 before the 1st addl. district and sessions judge, bengaluru rural district, under section 47 of the code of civil procedure, 1908 constitutes gross of process of law and set aside the order dated 17.08.2015 (annexure-v) posting the matter for orders on the main petition as well as interlocutory application and grant costs of these proceedings.) 1. in this writ petition filed under article 227 of the constitution of india, the petitioner, arraigned as the respondent no.2, in misc. petition no.157/2014, pending on the file of the 1st addl. district and sessions judge, bengaluru rural district, has sought for a declaration that the institution of the said petition, under section 47 of the code civil procedure, 1908 as constituting gross abuse of process of law and to set aside an order dated 17.08.2015 passed therein, posting the matter for orders on the main petition as well as an interlocutory application. ? 2. the basic facts which are necessary to decide this petition are as follows: the karnataka state financial corporation, having obtained a decree for recovery of rs.2,61,28,017.57/- had filed execution petition no.33/2000, to enforce the said decree dated 15.11.1999. sale proclamation having been issued and the court auction in respect of the property shown in the schedule of the execution petition having been conducted and sale having been made, ia no.3 was filed, under order xxi rule 94 read with section 151 of cpc, for confirmation of the sale by auction. the said application was allowed on 27.08.2005, making the sale, which was accepted on 19.04.2003, absolute. sale certificate ordered to be issued pursuant to the order dated 27.08.2005, was issued on 09.09.2005. i.a.no.4 filed by the respondent, under order xxi rule 90 read with sections 47 and 151 cpc, to set aside the sale by auction, was considered and an order rejecting the same was passed on 16.01.2006. certain other proceedings have taken place and they being not relevant to decide the point in issue in this petition, are not adverted to. the respondent has filed misc. petition no.157/2014, under section 47 of cpc, to declare that the sale declared on 19.04.2003, confirmed on 27.08.2005 and sale certificate issued on 09.09.2005 are void, nullity and non-est in the eye of law. the karnataka state financial corporation, arraigned as the first respondent, has filed its statement of objections on 13.02.2015. the petitioner, arraigned as the respondent no.2, has filed his objections on 04.04.2015. a statement having been made that there is no oral evidence to lead, the petition was posted on 15.04.2015 for hearing of arguments. written arguments of the petitioner in the misc. petition was filed on 15.04.2015. arguments on behalf of the karnataka state financial corporation was heard on 29.07.2015. to hear the arguments of respondent no.2 i.e., the petitioner herein, the case was adjourned to 06.08.2015. on that day, i.a.no.1, under order vii rule 11 cpc was filed. arguments of both sides having been heard on 17.08.2015, petition was adjourned to 19.08.2015, for passing of the orders on the misc. petition and ia.no.1. this petition was filed on 24.08.2015, for grant of the aforesaid relief's. 3. sri s.s. naganand, learned senior advocate and sri s. sriranga, learned advocate, contended that the decision to proceed with passing of orders, simultaneously on the main petition and i.a.no.1, suffers from arbitrariness and unreasonableness and even otherwise, the impugned order is erroneous and illegal. learned advocates submitted that the procedure which has been adopted by the trial judge being suffering from material irregularity, interference is called for. learned advocates contended that it is not open to the trial judge to decide main matter and i.a.no.1 simultaneously. according to the learned advocates, i.a.no.1 filed, under order vii rule 11 cpc, is required to be decided before the consideration and passing of order on the main misc. petition. no arguments in support of the other prayers sought in this writ petition was addressed. 4. sri b.v. acharya, learned senior advocate, on the other hand, by taking me through statement of objections filed on 04.09.2015 to this writ petition, contended that the petitioner having taken 13 adjournments to argue the matter and ultimately, after the learned advocate for the karnataka state financial corporation argued the matter on 29.07.2015 and case stood posted on 06.08.2015 for arguments of the petitioner herein, filed i.a.no.1. learned senior advocate pointed out, that on 06.08.2015, 13.08.2015 and on 17.08.2015, the trial judge heard the arguments, both on i.a.no.1 and main petition, and the matter was posted for orders on 19.08.2015, which was deferred, as it was submitted on behalf of the petitioner herein, that his counsel would file citations, and that on 21.08.2015, instead of filing citations, as undertaken, argument at length was addressed on the main petition. learned counsel pointed out that even on 25.08.2015, i.e., after filing of this writ petition, argument at length was addressed on behalf of the petitioner herein and that there is willful suppression of material events. learned counsel submitted that the trial judge having recorded the submission made, that there is no oral evidence to adduce and having posted the case for hearing on the main matter to 15.04.2015, i.a.no.1 filed, after addressing of main arguments by learned advocate for respondent no.1 on 29.07.2015, is a deliberate attempt to procrastinate the proceeding and gain illegally. learned counsel submitted that there is abuse of process of court by the petitioner in filing this petition by suppression of material events and this petition being frivolous and filed with dishonest intention, deserves to be dismissed with exemplary costs. 5. order sheet of misc. petition no.157/2014, filed on 05.12.2014, being relevant, is reproduced as under:- 08.12.2014.issue notice to respondents by 17/1/1517.01.2015:notice to r1 served on person. r2 served on gpa holder, sri gj files power for r1 and m/s. justlaw associates filed power for r2. objections for r1 and r2 by 07.02.2015.07.02.2015:counsel for r1 and r2 pray time to file objections. it is seen that r2 is represented by counsel associated with m/s. just law associates. the son of the presiding officer of this court who is studying law has recently associated himself with m/s. just law associates as an intern as a part of his course. therefore it is not proper for the presiding officer of this court to deal with the matter. counsel for petitioner is also present. matter is made over to i adj. parties shall appear before the i adj on 13.02.2015. office shall send the records to i adj before 13.02.2015.13.02.2015:sri gj advocate filed objection to misc. petition on behalf of r1. for objections of r2 finally by 25.02.2015.25.02.2015:r2 advocate prays time for objections of r2. last chance 16.03.2015.16.03.2015:r2 advocate prays time but petitioner objects to grant time. hence for objections of r2 finally by 20.03.2015.20.03.2015:ddg advocate present. r2 advocate files application seeking time. hence for objections of r2. r1 advocate present. hence for objections of respondent no.2. last chance 26.03.2015.26.03.2015:sri n.m. advocate for r2 filed application u/s 148 of cpc. ddg advocate filed application u/s 151 of cpc to take the matter on day-to-day basis. heard said application. r2 is permitted to file objection to petition well in time. petitioner is leaving india on 03.03.2015 and he is a cancer patient. hence for objection of respondent no.2. last chance 04.04.2015.04.04.2015:a.a. advocate for r-2 filed objection to misc. petition. ddg advocate submits that he has no oral evidence. hence for arguments 15.04.2015.15.04.2015:ddg advocate for petitioner filed written arguments. hence for arguments of respondents by 17.04.2015.17.04.2015:gj advocate for r1 prays time. hence for arguments of respondents at their request 18.04.2015.18.04.2015:respondents advocate prays time. ddg advocate requested to post on 22.04.2015. hence for arguments of respondents. finally 22.04.2015.22.04.2015:petitioner present. respondents 1 and 2 prays time but ddg advocate objects to grant time, as petitioner came from washington. hence for arguments of respondents last chance at their request on 24.04.2015.24.04.2015:respondent no.2 advocate prays time. but r1 advocate is ready. but ddg advocate objects to grant time. hence for arguments of respondents last chance 02.06.2015 at their request.02.06.2015:r2 advocate prays time. but petitioner advocate objected to grant time. hence for arguments of respondents finally by 09.06.2015.09.06.2015:r2 advocate prays time. ddg advocate present. hence for arguments for respondents last chance 12.06.2015 as petitioner is going to america on 12.06.2015.12.06.2015:r2 advocate prays time. but ddg advocate for petitioner objected to grant time and requested to pass orders as r2 trying to prolong the matter. hence for arguments of respondents last chance 17.06.2015.17.06.2015:petitioner present. r2 advocate prays time. but ddg advocate for petitioner objected to grant time. hence for arguments of respondents last chance 26.06.2015.26.06.2015:po is on cl. hence case called and adjourned to 07.07.2015.07.07.2015:petitioner present. staff of r1 present and prays time as he going to engage another advocate. sri g. joshi advocate submits that he is going to give noc hence for arguments of respondents last chance 15.07.2015.15.07.2015:appellant present. sri k.c. mahesh, advocate files power for r1. r1 and 2 advocate prays time. hence for arguments of respondents finally by 27.07.2015.27.07.2015:appellant present. r1 and r2 advocate prays time. but ddg advocate objected to grant time. hence for arguments of respondents at their request by 29.07.2015.29.07.2015:respondent advocate present and ready. both side advocate present. heard the arguments of advocate for respondent no.1 and heard the arguments of advocate for petitioner in full. r2 advocate prays time. hence for arguments of respondent no.2 06.08.2015.06.08.2015:sri s.k. advocate for r2 filed i.a.i under order 7 r 11 of cpc. petitioner advocate filed objection to i.a.i. heard the arguments of the respondent advocate and heard the arguments of petitioner advocate in part. hence for arguments of respondent on i.a.i and further arguments of respondent on petition by 13.08.2015.13.08.2015:petitioner present. sri b.m.s. advocate filed power of petitioner along with ddg advocate. heard both side. for reply of r2 advocate finally by 17.08.2015.17.08.2015:both advocate present and ready. accordingly heard both side for orders on miscellaneous petition and orders on i.a.i by 19.08.2015.19.08.2015:r2 advocate prays time as he is going to produce citations. hence order is deferred for time being. for orders on petition and orders on i.a.i by 21.08.2015.21.08.2015:r2 advocate present and ready to submit arguments. accordingly heard the arguments of sri sriranga advocate. for respondent 2 in part. therefore further arguments of respondent no.2. call on 25.08.2015.25.08.2015:both advocates present. r2 advocate sri sriranga present and argued at length. hence for further arguments on 27.08.2015. ? 6. keeping in view the record of the petition and the rival contentions, the point that arises for consideration in this petition is, whether i.a. filed under order vii rule 11 cpc should be directed to be decided first, though both parties have not adduced any evidence in the matter? ? 7. undoubtedly, by virtue of section 141 of the code, the procedure provided in the code in regard to suits shall be followed/as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. therefore, the court below, while deciding the misc. petition, can act in exercise of its power under the code, including order vii rule 11 cpc. 8. it is trite that the object behind the provision, under order vii rule 11 cpc, is to ensure that meaningless litigation which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the court. 9. in the present case, learned advocate appearing for the petitioner in the court below, having stated on 04.04.2015, that the petitioner has no oral evidence, case was posted for arguments on 15.04.2015. written argument was filed on the adjourned date and the case was adjourned for hearing of arguments of the respondents in the misc. petition by 17.04.2015. after obtaining several adjournments, arguments of advocate for karnataka state financial corporation was addressed in full on 29.07.2015. for hearing arguments of the petitioner herein i.e., respondent no.2 in the court below, the case was adjourned to 06.08.2015. i.a.no.1 was filed on said date. arguments of both sides having been heard on the misc. petition, the case was adjourned to 19.08.2015 o enable the learned advocate to produce the citations. pronouncement of order was deferred and the case was adjourned to 21.08.2015, on which date, argument addressed by sri sriranga, learned advocate, was heard in part and the case was adjourned to 25.08.2015. even on that date, the case was argued at length and was adjourned to 27.08.2015. it is relevant to note that the trial judge has not even been informed of filing of this writ petition on 24.08.2015 i.e., when the arguments of the case was addressed at length on 25.08.2015. 10. in saleem bhai and others vs. state of maharashtra and otehrs, (2003) 1 scc 557, it has been held by the apex court, that the trial court can exercise power under order vii rule 11 cpc at any stage of the proceedings- before registering the plaint or after issuing summons to the defendant or at any time before conclusion of the trial. in the present case, no trial has taken place. both parties have addressed arguments on i.a.no.1 and also on merit of the case. hence, i.a.no.1 filed, even after it was made known to the court that the parties have no oral evidence to adduce and also after hearing of the arguments on the main case, is nothing but dilatory tactics adopted to prolong the litigation. 11. in state of himachal pradesh vs. union of india and others, (2011) 13 scc 344, with reference to a contention, that order 23 rule 6(a) of the supreme court rules, 1966 states that a plaint shall be rejected where it does not disclose any cause of action, it has been held as follows: 62. at this stage, when oral and documentary evidence have already been led by the parties and arguments have been made by the learned counsel for the parties and when we are going to finally decide the suit, it is not necessary for us to consider whether the plaint discloses a cause of action and is liable to be rejected under order 23 rule 6(a) of the supreme court rules, 1966. ? 12. keeping in view the dates and events of the case, extracted supra, pending in the court below, it is clear that the petitioner has not approached this court with clean hands. the proceedings of the case which has taken place on 21.08.2015 and 25.08.2015 was not brought to the notice of this court, when the interim order dated 27.08.2015 was passed in this petition. on consideration of the totality of the facts and circumstances of the case pending before the court below and also its stage, i do not find any justification to issue a direction to the trial judge to decide i.a.no.1 first and not simultaneously with the main petition. such a course of action would only amount to duplication and waste of judicial time and totally unnecessary. consequently, this petition being devoid of merit is dismissed with costs, quantified at rs.25,000/-. the costs be paid in the court below on the next hearing date and further arguments, if any, both on main petition and i.a.no.1 be addressed and concluded within a period of one week from the next hearing date and the case be decided with expedition, on or before 17.10.2015.

Judgment:

(Prayer: This petition is filed under Article 227 of the Constitution of India, praying to call for the records of Misc. Petition No.157/2014 pending on the file of the 1st Additional District and Sessions Judge, Bengaluru Rural District and dismiss the petition as being barred by law; declare that the 1st Addl. District and Sessions Judge, Bengaluru Rural District, has no jurisdiction to entertain Misc. Petition No.157/2014 instituted under Section 47 of the CPC, 1908; declare that the institution of Misc. Petition No.157/2014 before the 1st Addl. District and Sessions Judge, Bengaluru Rural District, under Section 47 of the code of Civil Procedure, 1908 constitutes gross of process of law and set aside the order dated 17.08.2015 (Annexure-V) posting the matter for orders on the main petition as well as interlocutory application and grant costs of these proceedings.)

1. In this writ petition filed under Article 227 of the Constitution of India, the petitioner, arraigned as the Respondent No.2, in Misc. Petition No.157/2014, pending on the file of the 1st Addl. District and Sessions Judge, Bengaluru Rural District, has sought for a declaration that the institution of the said petition, under Section 47 of the Code Civil Procedure, 1908 as constituting gross abuse of process of law and to set aside an order dated 17.08.2015 passed therein, posting the matter for orders on the main petition as well as an interlocutory application. ?

2. The basic facts which are necessary to decide this petition are as follows:

The Karnataka State Financial Corporation, having obtained a decree for recovery of Rs.2,61,28,017.57/- had filed Execution Petition No.33/2000, to enforce the said decree dated 15.11.1999. Sale Proclamation having been issued and the Court auction in respect of the property shown in the schedule of the execution petition having been conducted and sale having been made, IA No.3 was filed, under Order XXI Rule 94 read with Section 151 of CPC, for confirmation of the sale by auction. The said application was allowed on 27.08.2005, making the sale, which was accepted on 19.04.2003, absolute. Sale Certificate ordered to be issued pursuant to the order dated 27.08.2005, was issued on 09.09.2005. I.A.No.4 filed by the respondent, under Order XXI Rule 90 read with Sections 47 and 151 CPC, to set aside the sale by auction, was considered and an order rejecting the same was passed on 16.01.2006. Certain other proceedings have taken place and they being not relevant to decide the point in issue in this petition, are not adverted to.

The respondent has filed Misc. Petition No.157/2014, under Section 47 of CPC, to declare that the sale declared on 19.04.2003, confirmed on 27.08.2005 and Sale Certificate issued on 09.09.2005 are void, nullity and non-est in the eye of law. The Karnataka State Financial Corporation, arraigned as the first respondent, has filed its statement of objections on 13.02.2015. The petitioner, arraigned as the respondent No.2, has filed his objections on 04.04.2015. A statement having been made that there is no oral evidence to lead, the petition was posted on 15.04.2015 for hearing of arguments. Written arguments of the petitioner in the Misc. Petition was filed on 15.04.2015. Arguments on behalf of the Karnataka State Financial Corporation was heard on 29.07.2015. To hear the arguments of respondent No.2 i.e., the petitioner herein, the case was adjourned to 06.08.2015. On that day, I.A.No.1, under Order VII Rule 11 CPC was filed. Arguments of both sides having been heard on 17.08.2015, petition was adjourned to 19.08.2015, for passing of the orders on the Misc. Petition and IA.No.1. This petition was filed on 24.08.2015, for grant of the aforesaid relief's.

3. Sri S.S. Naganand, learned Senior Advocate and Sri S. Sriranga, learned Advocate, contended that the decision to proceed with passing of orders, simultaneously on the main petition and I.A.No.1, suffers from arbitrariness and unreasonableness and even otherwise, the impugned order is erroneous and illegal. Learned Advocates submitted that the procedure which has been adopted by the Trial Judge being suffering from material irregularity, interference is called for. Learned Advocates contended that it is not open to the Trial Judge to decide main matter and I.A.No.1 simultaneously. According to the learned Advocates, I.A.No.1 filed, under Order VII Rule 11 CPC, is required to be decided before the consideration and passing of order on the main Misc. Petition. No arguments in support of the other prayers sought in this writ petition was addressed.

4. Sri B.V. Acharya, learned Senior Advocate, on the other hand, by taking me through statement of objections filed on 04.09.2015 to this writ petition, contended that the petitioner having taken 13 adjournments to argue the matter and ultimately, after the learned Advocate for the Karnataka State Financial Corporation argued the matter on 29.07.2015 and case stood posted on 06.08.2015 for arguments of the petitioner herein, filed I.A.No.1. Learned Senior Advocate pointed out, that on 06.08.2015, 13.08.2015 and on 17.08.2015, the Trial Judge heard the arguments, both on I.A.No.1 and main petition, and the matter was posted for orders on 19.08.2015, which was deferred, as it was submitted on behalf of the petitioner herein, that his counsel would file citations, and that on 21.08.2015, instead of filing citations, as undertaken, argument at length was addressed on the main petition. Learned Counsel pointed out that even on 25.08.2015, i.e., after filing of this writ petition, argument at length was addressed on behalf of the petitioner herein and that there is willful suppression of material events. Learned Counsel submitted that the Trial Judge having recorded the submission made, that there is no oral evidence to adduce and having posted the case for hearing on the main matter to 15.04.2015, I.A.No.1 filed, after addressing of main arguments by learned Advocate for respondent No.1 on 29.07.2015, is a deliberate attempt to procrastinate the proceeding and gain illegally. Learned Counsel submitted that there is abuse of process of Court by the petitioner in filing this petition by suppression of material events and this petition being frivolous and filed with dishonest intention, deserves to be dismissed with exemplary costs.

5. Order sheet of Misc. Petition No.157/2014, filed on 05.12.2014, being relevant, is reproduced as under:-

08.12.2014.	Issue notice to Respondents by 17/1/15
17.01.2015:	Notice to R1 served on person. R2 served on GPA Holder, Sri GJ files power for R1 and M/s. Justlaw Associates filed power for R2. Objections for R1 and R2 by 07.02.2015.
07.02.2015:	Counsel for R1 and R2 pray time to file objections. It is seen that R2 is represented by counsel associated with M/s. Just Law Associates. The son of the presiding officer of this court who is studying law has recently associated himself with M/s. Just Law Associates as an intern as a part of his course. Therefore it is not proper for the presiding officer of this court to deal with the matter. Counsel for petitioner is also present. Matter is made over to I ADJ. Parties shall appear before the I ADJ on 13.02.2015. Office shall send the records to I ADJ before 13.02.2015.
13.02.2015:	Sri GJ Advocate filed objection to Misc. Petition on behalf of R1. For objections of R2 finally by 25.02.2015.
25.02.2015:	R2 Advocate prays time for objections of R2. Last chance 16.03.2015.
16.03.2015:	R2 Advocate prays time but Petitioner objects to grant time. Hence for objections of R2 finally by 20.03.2015.
20.03.2015:	DDG Advocate Present. R2 Advocate files application seeking time. Hence for objections of R2. R1 Advocate present. Hence for objections of Respondent No.2. Last chance 26.03.2015.
26.03.2015:	Sri N.M. Advocate for R2 filed application u/s 148 of CPC. DDG Advocate filed application u/s 151 of CPC to take the matter on day-to-day basis. Heard said application. R2 is permitted to file objection to petition well in time. Petitioner is leaving India on 03.03.2015 and he is a Cancer patient. Hence for objection of Respondent No.2. Last chance 04.04.2015.
04.04.2015:	A.A. Advocate for R-2 filed objection to Misc. Petition. DDG Advocate submits that he has no oral evidence. Hence for arguments 15.04.2015.
15.04.2015:	DDG Advocate for Petitioner filed written arguments. Hence for arguments of Respondents by 17.04.2015.
17.04.2015:	GJ Advocate for R1 prays time. Hence for arguments of Respondents at their request 18.04.2015.
18.04.2015:	Respondents Advocate prays time. DDG Advocate requested to post on 22.04.2015. Hence for arguments of Respondents. Finally 22.04.2015.
22.04.2015:	Petitioner present. Respondents 1 and 2 prays time but DDG Advocate objects to grant time, as Petitioner came from Washington. Hence for arguments of Respondents last chance at their request on 24.04.2015.
24.04.2015:	Respondent No.2 Advocate prays time. But R1 Advocate is ready. But DDG Advocate objects to grant time. Hence for arguments of Respondents last chance 02.06.2015 at their request.
02.06.2015:	R2 Advocate prays time. But petitioner Advocate objected to grant time. Hence for arguments of Respondents finally by 09.06.2015.
09.06.2015:	R2 Advocate prays time. DDG Advocate present. Hence for arguments for Respondents last chance 12.06.2015 as Petitioner is going to America on 12.06.2015.
12.06.2015:	R2 Advocate prays time. But DDG Advocate for Petitioner objected to grant time and requested to pass orders as R2 trying to prolong the matter. Hence for arguments of Respondents last chance 17.06.2015.
17.06.2015:	Petitioner present. R2 Advocate prays time. But DDG Advocate for Petitioner objected to grant time. Hence for arguments of Respondents last chance 26.06.2015.
26.06.2015:	PO is on CL. Hence case called and adjourned to 07.07.2015.
07.07.2015:	Petitioner present. Staff of R1 present and prays time as he going to engage another Advocate. Sri G. Joshi Advocate submits that he is going to give NOC hence for arguments of Respondents last chance 15.07.2015.
15.07.2015:	Appellant present. Sri K.C. Mahesh, Advocate files power for R1. R1 and 2 Advocate prays time. Hence for arguments of Respondents finally by 27.07.2015.
27.07.2015:	Appellant present. R1 and R2 Advocate prays time. But DDG Advocate objected to grant time. Hence for arguments of Respondents at their request by 29.07.2015.
29.07.2015:	Respondent Advocate present and ready. Both side Advocate present. Heard the arguments of Advocate for Respondent No.1 and heard the arguments of Advocate for Petitioner in full. R2 Advocate prays time. Hence for arguments of Respondent No.2 06.08.2015.
06.08.2015:	Sri S.K. Advocate for R2 filed I.A.I under Order 7 R 11 of CPC. Petitioner Advocate filed objection to I.A.I. Heard the arguments of the Respondent Advocate and heard the arguments of Petitioner Advocate in part. Hence for arguments of Respondent on I.A.I and further arguments of Respondent on Petition by 13.08.2015.
13.08.2015:	Petitioner present. Sri B.M.S. Advocate filed power of Petitioner along with DDG Advocate. Heard both side. For reply of R2 Advocate finally by 17.08.2015.
17.08.2015:	Both Advocate present and ready. Accordingly heard both side for orders on Miscellaneous Petition and orders on I.A.I by 19.08.2015.
19.08.2015:	R2 Advocate prays time as he is going to produce citations. Hence order is deferred for time being. For orders on Petition and orders on I.A.I by 21.08.2015.
21.08.2015:	R2 Advocate present and ready to submit arguments. Accordingly heard the arguments of Sri Sriranga Advocate. For Respondent 2 in part. Therefore further arguments of Respondent No.2. Call on 25.08.2015.
25.08.2015:	Both Advocates present. R2 Advocate Sri Sriranga present and argued at length. Hence for further arguments on 27.08.2015. ?

6. Keeping in view the record of the petition and the rival contentions, the point that arises for consideration in this petition is, Whether I.A. filed under Order VII Rule 11 CPC should be directed to be decided first, though both parties have not adduced any evidence in the matter? ?

7. Undoubtedly, by virtue of Section 141 of the Code, the procedure provided in the Code in regard to suits shall be followed/as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Therefore, the Court below, while deciding the Misc. Petition, can act in exercise of its power under the Code, including Order VII Rule 11 CPC.

8. It is trite that the object behind the provision, under Order VII Rule 11 CPC, is to ensure that meaningless litigation which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the Court.

9. In the present case, learned Advocate appearing for the petitioner in the Court below, having stated on 04.04.2015, that the petitioner has no oral evidence, case was posted for arguments on 15.04.2015. Written argument was filed on the adjourned date and the case was adjourned for hearing of arguments of the respondents in the Misc. Petition by 17.04.2015. After obtaining several adjournments, arguments of Advocate for Karnataka State Financial Corporation was addressed in full on 29.07.2015. For hearing arguments of the petitioner herein i.e., respondent No.2 in the court below, the case was adjourned to 06.08.2015. I.A.No.1 was filed on said date. Arguments of both sides having been heard on the Misc. Petition, the case was adjourned to 19.08.2015 o enable the learned Advocate to produce the citations. Pronouncement of order was deferred and the case was adjourned to 21.08.2015, on which date, argument addressed by Sri Sriranga, learned Advocate, was heard in part and the case was adjourned to 25.08.2015. Even on that date, the case was argued at length and was adjourned to 27.08.2015. It is relevant to note that the trial Judge has not even been informed of filing of this writ petition on 24.08.2015 i.e., when the arguments of the case was addressed at length on 25.08.2015.

10. In SALEEM BHAI AND OTHERS vs. STATE OF MAHARASHTRA AND OTEHRS, (2003) 1 SCC 557, it has been held by the Apex Court, that the Trial Court can exercise power under Order VII Rule 11 CPC at any stage of the proceedings- before registering the plaint or after issuing summons to the defendant or at any time before conclusion of the trial. In the present case, no trial has taken place. Both parties have addressed arguments on I.A.No.1 and also on merit of the case. Hence, I.A.No.1 filed, even after it was made known to the Court that the parties have no oral evidence to adduce and also after hearing of the arguments on the main case, is nothing but dilatory tactics adopted to prolong the litigation.

11. In STATE OF HIMACHAL PRADESH VS. UNION OF INDIA AND OTHERS, (2011) 13 SCC 344, with reference to a contention, that Order 23 Rule 6(a) of the Supreme Court Rules, 1966 states that a plaint shall be rejected where it does not disclose any cause of action, it has been held as follows:

62. At this stage, when oral and documentary evidence have already been led by the parties and arguments have been made by the learned counsel for the parties and when we are going to finally decide the suit, it is not necessary for us to consider whether the plaint discloses a cause of action and is liable to be rejected under Order 23 Rule 6(a) of the Supreme Court Rules, 1966. ?

12. Keeping in view the dates and events of the case, extracted supra, pending in the Court below, it is clear that the petitioner has not approached this Court with clean hands. The proceedings of the case which has taken place on 21.08.2015 and 25.08.2015 was not brought to the notice of this Court, when the interim order dated 27.08.2015 was passed in this petition. On consideration of the totality of the facts and circumstances of the case pending before the court below and also its stage, I do not find any justification to issue a direction to the Trial Judge to decide I.A.No.1 first and not simultaneously with the main petition. Such a course of action would only amount to duplication and waste of judicial time and totally unnecessary.

Consequently, this petition being devoid of merit is dismissed with costs, quantified at Rs.25,000/-. The costs be paid in the court below on the next hearing date and further arguments, if any, both on main petition and I.A.No.1 be addressed and concluded within a period of one week from the next hearing date and the case be decided with expedition, on or before 17.10.2015.