IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NOs.11933/2017 & 12552/2017 (GM-CPC) BETWEEN:
1. SMT. A. GANGAMMA W/O LATE L.N. SIDDAPPA AGED ABOUT 32 YEARS 2. SRI. S.G. MADHUKUMAR AGED ABOUT 15 YEARS S/O LATE N. SIDDAPPA 3. KUMARI S.G. MANASA AGED ABOUT 16 YEARS D/O LATE L.N. SIDDAPPA ALL ARE RESIDING AT RAINGUAGE EXTENSION PAVAGADA TOWN PAVAGADA TALUK TUMKUR DISTRICT-572 212.
REP. BY NATURAL GUARDIAN MOTHER OF PETITIONER NOS. 2 AND 3.
... PETITIONERS (BY SMT. SANDHYA D FOR SRI. NATARAJ R, ADVOCATES) AND:
1. SMT. GANGAMMA AGED ABOUT 45 YEARS W/O NOT KNOWN TO PETITIONERS 2. SMT. DIVYA AGED ABOUT 24 YEARS D/O NOT KNOWN TO PETITIONERS BOTH ARE RESIDENTS OF AND C/O VARADARAJ #285, GARDEN LAND NEAR GANAPATHI TEMPLE T. DASARAHALLI, BANGALORE-572 123.
3. BLOCK EDUCATION OFFICER PAVAGADA, TUMAKURU DISTRICT-572 112 4. DEPUTY DIRECTOR OF PUBLIC INSTRUCTION (NORTH DISTRICT) MADHUGIRI, TUMKUR DISTRICT-572 112 5. CHIEF SECRETARY TO GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-560 001.
6. SMT. GANGAMMA W/O HANUMANTHAIAH AGED ABOUT 32 YEARS R/O RAMISANA BUILDING RAIGUAGE EXTENSION OPP. POLICE STATION PAVAGADA, TUMKUR DISTRICT-572 112.
... RESPONDENTS (BY SRI. M.B. SHANKARE GOWDA, ADVOCATE FOR R-1 & R-2;
SRI. UMESH MURTHY, ADVOCATE FOR R-3, 4 & 5) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO GRANT AN INTERIM ORDER TO STAY THE FURTHER PROCEEDINGS IN O.S.NO.5/2011 PEDNING ON THE FILE OF THE SENIOR CIVIL JUDGE AT MADHUGIRI.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Defendants 5, 6 and 7 in O.S.No.5/2011 pending on the file of Civil Judge (Sr.Dn.), Madhugiri, have prayed for setting aside the order dated 24.09.2016, whereunder applications filed under Section 151 and Order XVIII Rule 17 of CPC to recall the order discarding evidence of D.W.1 (i.e., 5th defendant) and to tender herself for cross-examination, has been rejected.
2. Respondents 1 and 2 herein have filed the above referred suit for declaring that first plaintiff is the legally wedded wife and second plaintiff is the daughter and they are the legal heirs of deceased L.N.Siddappa and as such, they are entitled to receive the death benefits of deceased L.N.Siddappa; to declare order passed in P & SC No.1/2010 as null and void; with a further direction to defendants 1 to 3 to pay the death benefits to plaintiffs and to grant appointment on compassionate ground either to first or second plaintiff.
3. On service of suit summons defendants 5 to 7 have appeared, contested the matter by filing their detailed written statement and denied the averments made in the plaint. They have also raised a plea that 5th defendant is the legally wedded wife of deceased L.N.Siddappa. After evidence of plaintiffs came to be recorded, 5th defendant got herself examined as D.W.1 and matter was listed for cross-examination from time- to-time. Order sheet of trial Court at Annexure-G would disclose that except on one date of hearing the defendant (D.W.1) has remained absent from 28.08.2015 till order dated 03.06.2016 came to be passed discarding her evidence.
4. Though affidavit filed in support of the application would disclose the reason for her absence on 03.06.2016 was on the ground that one of her uncle having expired and she had gone to attend the funeral ceremony, the fact remains that D.W.1 was absent continuously even on previous occasions. However, there being rival claim to the death benefits of deceased L.N.Siddappa by plaintiffs on the one hand and defendants 5 to 7 on the other hand, this Court is of the considered view that one more opportunity deserves to be granted to D.W.1 to offer herself for cross- examination. In that view of the matter, impugned order requires to be set aside and to allay the apprehension expressed by learned counsel appearing for respondents 1 and 2 namely plaintiffs that 5th defendant is likely to protract the proceedings, further directions can be issued. Hence, for the reasons aforestated, I proceed to pass the following:
ORDER (i) Writ petition is hereby allowed.
(ii) Order dated 24.09.2016-Annexure G passed by Civil Judge (Sr.Dn.), Madhugiri, in O.S.No.5/2011, is hereby set aside.
(iii) Interlocutory applications filed under Section 151 CPC and Order XVIII Rule 17 CPC – Annexures – E and F, are hereby allowed on cost of ` 3,000/- payable to plaintiffs by 5th defendant on the next date of hearing and payment of costs shall be condition precedent for permitting D.W.1 to tender herself for cross-examination.
(iv) D.W.1 shall appear before trial Court on the next date of hearing without fail and in the event of D.W.1 failing to appear, order discarding her evidence shall stand revived.
(v) In view of the fact that suit is pending for more than six (6) years trial Court shall take effective steps to dispose of the suit expeditiously keeping in mind the Karnataka (Case Flow Management in Subordinate Courts) Rules, 2005 and Order XVII of CPC and dispose of the suit expeditiously and at any rate within outer limit of nine (9) months from today, subject to both parties cooperating.
(vi) In the event of either of parties were to seek for any adjournment, trial Court would be at liberty to regulate its proceedings by putting the parties on terms.
Ordered accordingly.
SD/- JUDGE DR