HARSHA DANDAPANI v. MARK D'SOUZA

(BY SRI. ANANTHARAM G.R, ADVOCATE) FEBRUARY 2019, PASSED THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 19TH IN O.S.NO.5883/2010 ON I.A.NO.7 OF HON'BLE COURT THE XIV ADDITIONAL CITY CIVIL JUDGE AT BANGALORE (CCH NO.28) (ANNEXURE-A) THEREBY ALLOWING THE APPLICATION FILED BY THE PETITIONER HEREIN UNDER ORDER XVI RULE 1, 2 AND 6 OF CODE OF CIVIL PROCEDURE, 1908, NUMBERED IA NO.7 BY THE HON'BLE LOWER COURT AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: SHARADAVANI B Location: High Court of Karnataka - 2 - NC: 2025:KHC:20934 WP No. 11423 of 2019 HC-KAR CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This Writ Petition is filed by Petitioner - defendant seeking the following reliefs: "(i) Issue a writ of Certiorari quashing the impugned order dated 19th February 2019, passed O.S.No.5883/2010 on IA No.7 of Hon'ble Court the XIV Additional City Civil Judge at Bangalore (CCH No.28) application filed by the petitioner herein under order XVI Rule 1, 2 and 6 of Code of Civil Procedure, 1908, numbered IA No.7 by the Hon'ble Lower Court. (Annexure-A) allowing thereby (ii) PASS such other order/s as this Hon'ble Court deems fit, in the interest of justice and equity."

#2. Heard, Smt. Smitha, learned counsel appearing for the Petitioner and Sri. Anantharam G.R. learned counsel appearing for the Respondent.

#3. Learned counsel appearing the Petitioner submits the Respondent has filed a O.S.No.5883/2010 for recovery of money, wherein an assertion is made that that he has field suit for recovery of unpaid dues arising out of jointly executed projects. The Respondent has also made an assertion that the Petitioner-defendant has offered him a design related creative work and based on that assertion, he has resigned from the job. In order to establish - 3 - NC: 2025:KHC:20934 WP No. 11423 of 2019 HC-KAR that this factum of assertion is wrong, the documents sought in the IA No.7 are required to be produced from the custody of the Head of the HR Department, Times of India Limited, Bengaluru. However, the trial Court proceeded to reject the application on the ground that the bonafide grounds are lacking in the application and particulars of the documents are not made available. It is submitted that the Petitioner is not the custodian of the documents sought. Hence, particulars of the documents are not specifically mentioned in the application. The trial Court has proceeded to reject the said application.

#4. Learned counsel for the Petitioner further submits that the documents sought in the application are essential for deciding the dispute between the parties and to prove that the claim of the respondent is false and frivolous. Hence, she seeks to allow the Writ Petition by setting aside the impugned order and pass an order for summoning the documents.

#5. Per contra, learned counsel appearing for the Respondent supports the impugned order of the trial Court and submits that the application is sought from the Head of HR Department of Times of India, Bengaluru and they are not a - 4 - NC: 2025:KHC:20934 WP No. 11423 of 2019 HC-KAR party to the proceedings. Though the claim of Respondent is that he has resigned from the employment of Times of India, those documents are neither in the custody of Respondent nor are they necessary to decide the case between the parties. Hence, he seeks to dismissal of the Writ Petition.

#6. I have heard the arguments of the learned counsel appearing for the parties and perused the material available on record. I have given my anxious consideration to contentions advanced by the parties.

#7. The Respondent a O.S.No.5883/2010 and the same is pending for adjudication. In the pending suit, the Petitioner filed an application under Order XVI, Rule 1, 2 and 6 r/w Section 151 of Code of Civil Procedure, 1908 for summoning of the person cited in application and for the summoning of the documents referred in the application. The application in IA No.7 indicates that the person whom the Petitioner intends to summon is the Head of HR Department, Times of India, Bengaluru and the address is provided. The description of the documents sought are the Appointment Letter, Resignation Letter, details of Designation and salary drawn by the Respondent, Resignation email of - 5 - NC: 2025:KHC:20934 WP No. 11423 of 2019 HC-KAR Respondent, details pertaining to project related emails sent by the Respondent, details of the payment made by Times of India Limited related to the Respondent and details of the number of projects commissioned by Times of India that were executed by the defendant. The said application is accompanied with an affidavit of the Petitioner. Paragraph Nos. 3 and 4 of the affidavit indicate that during the cross-examination, Petitioner has stated that he does not have a copy of the Resignation Letter, Salary Certificate for the works executed and all related documentation relating to his employment with the Times of India.

#8. Further, the Respondent has averred with regarding his employment and his resignation to Times of India. Hence, they are the important documents and sought for production of the same. The affidavit does not indicate any reason whatsoever as to how those documents have a bearing on the lis between the parties and examination of witnesses is necessary.

#9. In the instant case, bonafide grounds are lacking in the application and the explanation as to how the examination of witnesses and those documents are necessary to decide the - 6 - NC: 2025:KHC:20934 WP No. 11423 of 2019 HC-KAR suit is not forthcoming from the application. Hence, the trial Court is right in rejecting the application as the documents more particularly, email correspondence does not provide any particulars like date, time or parties involved communication. In the absence of any such particulars, mere seeking of production of documents and examination of witnesses unconnected in a suit between the Petitioner and Respondent for recovery of money, that too shifting the heavy burden on the Respondent to prove the case is not justified. I do not find any error in trial Court rejecting the application for summoning of the person and summoning of the documents.

#10. For the aforementioned reasons, I proceed to pass the following: ORDER The Writ Petition is devoid of merits and the same is dismissed. Sd/- (VIJAYKUMAR A. PATIL) JUDGE Bsv/List No.: 1 Sl No.: 48 CT: BHK