IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.18353/2015(GM-CPC) BETWEEN:
B. L. LEELAVATHI, W/O DEVARAJA, AGED ABOUT 52 YEARS R/AT HAROHALLI, KANAKAPURA TALUK, BANGALORE RURAL DISTICT-560056. .. PETITIONER (BY SRI K.R. RAJENDRA, ADVOCATE) AND:
1. B. L. BHADRANARAYA, S/O LATE N LAKSHMANA, AGED ABOUT 58 YEARS WORKING AT SBM HOOIDE BRANCH, ITPL ROAD, BANGALORE-560027.
2. B. L. JANARDHANA, S/O LATE N. LAKSHMANA, AGED ABOUT 57 YEARS, PSI, SULIBELE POLICE STATION, P.O.SULIBELE, HOSAKOTE TALUK-526001. BANGALORE RURAL DISTRICT.
3. B. L. RADHAKRISHNA, S/O N. LAKSHMANA, AGED ABOUT 55 YEARS SITE NO.49/A, NEW TIMBER YARD LAYOUT, MYSORE ROAD, BANGALORE-560 026.
4. SHIVARAMA B. L., S/O LATE N. LAKSHMANA, AGED ABOUT 50 YEARS, R/AT NO.255E,SRINIVASA BUILDING, PANTARA PALYA, NEAR MANJUNATH TILES, BANGALORE-560 039.
5. SMT. LALITHAMMA, W/O LATE N. LAKSHMANA, AGED ABOUT 53 YEARS, HOUSE NO.516,AVALAHALLI, NEW EXTENSION, ADJACENT TO BHAVANI FLOOR MILL, MYSORE ROAD, BANGALORE-560026.
6. M. S. NARENDRA METHA, FATHER NAME NOT TO PLAINTIFF, AGED ABOUT 58 YEARS R/AT NO.49/A, NEW TIMBER YARD LAYOUT, MYSORE ROAD, BANGALORE-560 026.
7. KUSUMA, D/O LATE N. LAKSHMANA, AGED ABOUT 24 YEARS, 8. UPENDRA, S/O LATE N. LAKSHMANA, AGED ABOUT 22 YEARS, DEFENDANT NOS.7 AND 8 ARE MINORS AND ARE REPRESENTED BY COURT GUARDIAN.
9. SMT. KANTHAMMA, W/O H. M. KRISHNAPPA, AGED ABOUT 42 YEARS, R/AT NO.255E,SRINIVASA BUILDING, PANTARA PALYA, NEAR MANJUNATH TILES, BANGALORE-560 039.
10. SMT. B. L. LAKSHMIDEVAMMA, W/O RAMACHANDRA, AGED ABOUT 54 YEARS R/AT KONANUR @ POST, THIRTHAHALLI TALUK, SHIMOGA DISTRICT-577432.
11. SMT. B. L. UMADEVI, W/O R. VENKATESH, AGED ABOUT 46 YEARS, R/AT GEREHATTI, CHITRADURGA TALUK, CHITRADURGA DISTRICT-577501.
... RESPONDENTS (BY SRI MANJUNATHA R., ADVOCATE FOR R1 – R4) SRI G. PAPI REDDY, ADVOCATE FOR R7 & R8; R5 ,R9, R11, R10 SERVED;
NOTICE TO R-6 IS DISPENSED WITH VIDE ORDER DT.12.08.2015) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.4.2015 PASSED IN O.S.NO.6702/2007 ON THE FILE OF THE PRL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiff No.3 filed the present writ petition against the order dated 8.4.2015 on I.A. No.18 made in O.S. No.6702/2007 dismissing the application filed under Order 18 Rule 17 r/w Section 151 of Code of Civil Procedure to recall PW.2 for cross-examination.
2. The plaintiffs filed O.S. No.6702/2007 for partition and separate possession in respect of the suit schedule properties morefully described in the ‘A’ schedule consisting of four items contending that the plaintiffs and defendants are members of the joint family and the suit schedule properties are the joint family properties and there was no partition. The defendants filed the written statement and denied the plaint averments and contended that their father during his life time executed a Will bequeathing his properties in favour of the plaintiffs and the defendants and therefore the very suit filed by the plaintiffs is not maintainable and therefore sought for dismissal of the suit.
3. After completion of evidence on both sides, when the matter was posted for arguments, at that stage out of the four plaintiffs, only plaintiff Nos.2 and 3 filed an application under Order 18 Rule 17 r/w Section 151 of Code of Civil Procedure to recall PW.2 (plaintiff No.4) for cross- examination stating that PW.2 has deposed adverse to the interest of the plaintiff and there was no opportunity for them to cross-examine PW.2. It is also contended that if the application is allowed, no hardship would be caused to the defendants and on the other hand if the application is not allowed, great hardship would caused to the plaintiffs.
4. Defendant Nos.2 and 4 filed objections to the application contending that inspite of granting sufficient opportunity, the plaintiff Nos.2 and 3 have not availed opportunity. Though the suit was of the year 2007, the plaintiff Nos.2 and 3 are not proceeding with the case and they are dragging on the proceedings. Therefore application has to be dismissed.
5. The trial Court considering the application and the objections by the impugned order dated 8.4.2015 dismissed the application. Hence the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri K.R. Rajendra, learned counsel for the petitioner fairly submits that there is mistake on the part of the advocate appearing for the plaintiff Nos.2 and 3 in not cross-examining PW.2 though opportunity was given. Because of the mistake committed by the learned counsel, the party should not suffer. Rights of the parties are involved in respect of the immovable properties morefully described in the schedule to the plaint. Therefore the opportunity ought to have been given to plaintiff Nos.2 and 3 to cross-examine PW.2. He submits that if one date is fixed, on the said day plaintiff Nos.2 and 3 will cross- examine PW.2. Therefore he sought to quash the impugned order by providing opportunity to the plaintiff Nos.2 and 3 to cross-examine PW.2.
8. Sri Manjunath, learned counsel for the contesting defendants sought to justify the impugned order passed by the trial Court contending that though the suit was filed in the year 2007 and inspite of giving sufficient opportunity, plaintiff Nos.2 and 3 have not availed opportunity to cross- examine PW.2. Therefore the trial Court was justified in dismissing the application.
9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
10. It is not in dispute that the suit filed by the plaintiffs for partition and separate possession. The defendants filed the written statement denying the averments made in the plaint. The rights of the parties are involved in respect of the immovable properties morefully described in the schedule to the plaint. There is mistake on the part of the learned counsel appearing for plaintiff Nos.2 and 3 in not cross-examining PW.2 though opportunity was given. It is well settled principle of law that because of the mistake on the part of the advocate, the party should not suffer. The matter is pending before this Court since more than two years and interim stay was granted during the pendency of the writ petition. No prejudice would be caused to the parties if opportunity is given to plaintiff Nos.2 and 3 to cross-examine PW.2 by imposing costs.
11. For the reasons stated above, the writ petition is allowed. The impugned order dated 8th April 2015 dismissing I.A. filed under Order 18 Rule 17 of Code of Civil Procedure is quashed. I.A. No.18 filed by the plaintiff Nos.2 and 3 under Order 18 Rule 17 is allowed with costs of Rs.2,500/- (Rupees two thousand five hundred only) payable by plaintiff Nos.2 and 3 to the defendant Nos.2 and 4. The plaintiff Nos.2 and 3 are permitted to cross- examine PW.2 (plaintiff No.4 – Smt. B.L. Umadevi) on the next date of hearing immediately after receipt of certified copy of this order and it is made clear that if plaintiff Nos.2 and 3 not avail opportunity to cross-examine PW.2 on the next date to be fixed by the learned Judge, the trial Court shall proceed further in accordance with law.
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JUDGE Gss/-