IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.5146/2017 (GM – CPC) BETWEEN 1. Smt.Chandrakala, w/o late Suresh aged about 46 years, r/a No.862, 1st Floor, Kalidasanagar Hosakerehalli village 2nd Cross, 7th Block 4th Main, BSK 3rd Stage Bengaluru – 85.
2. Smt.Mangala Priya, w/o Lokesh aged about 29 years r/a No.862, 1st Floor Kalidasanagar Hosakerehalli village 2nd Cross, 7th Block 4th Main, BSK 3rd Stage Bengaluru – 85. .. Petitioners (By Sri G A Srikante Gowda, Advocate) AND 1. Shri Ravi @ S Ravi s/o late Subramany aged about 38 years r/a No. 862, Ground Floor Kalidasanagar, Hosakerehalli 2nd Cross, 7th Block 4th Main, BSK 3rd Stage Bengaluru – 85.
2. Smt.Jaya, w/o Ravi aged about 32 years r/a No. 862, Ground Floor Kalidasanagar, Hosakerehalli 2nd Cross, 7th Block 4th Main, BSK 3rd Stage Bengaluru – 85.
3. Sudhakar Aged about 36 years r/a No. 862, 1st Floor Kalidasanagar, Hosakerehalli 2nd Cross, 7th Block 4th Main, BSK 3rd Stage Bengaluru – 85. .. Respondents (By Sri Kamaleshwara P, Advocate for R1 and R2, Notice to R3 dispensed with) This WP is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the order (Annexure-F) dtd:9.1.2017 passed by the City Civil and Sessions Judge, Bengaluru on IA No.6 in O.S.No.7462/2011.
This writ petition coming on for orders this day, the court passed the following: -
ORDER The petitioners – defendant Nos.1 and 2 have filed the present writ petition against the order dated 9.1.2017 posting I.A.No.VI filed under Order 18 Rule 17 of Code of Civil Procedure after recording the evidence of defendants side.
2. The respondent Nos.1 and 2, who are the plaintiffs, filed the suit for permanent injunction in respect of suit schedule property morefully described in the schedule contending that they are the owners in possession of the suit schedule property and the defendants have no right, title and interest over the suit schedule property.
3. The defendants filed written statement and denied the plaint averments and contended that they are the owners of the suit schedule property by virtue of sale deed dated 12.8.2008 executed by the Bangalore Development Authority in favour of the 2nd defendant and therefore they sought for dismissal of the suit.
4. When the matter was posted for evidence of defendants, petitioners/defendants No.1 and 2 filed I.A.No.6 under Order XVIII Rule 17 read with Section 151 of CPC praying to recall PW1 and permit them to further cross-examination of PW1 stating that when the case was posted for cross-examination of PW1, the counsel for the petitioners sought for some time for cross-examination of PW1 on the ground that he requires some necessary documents. But the Trial Court without considering the request posted the case for defendant evidence. Therefore, at this stage, the present application was filed to recall PW1 for further cross-examination.
5. The defendant Nos.1 and 2 filed objection and denied the entire averments made in the application.
6. The Trial Court by the impugned order dated 9.1.2017 posted I.A.No.VI after recording the evidence of defendants side. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri G A Srikante Gowda, learned counsel for the petitioners contended that the impugned order passed by the Trial Court without assigning any reasons posting I.A.No.VI after recording the evidence of defendants side is erroneous and contrary to the material on record. He further contended that the Trial Court simply stated that the application to be heard after evidence of defendants side. Therefore, he prays to quash the impugned order passed by the Trial Court.
9. Per contra, Sri Kamaleshwara P, learned counsel appearing for respondent No.1 rightly and fairly submits that the application has to be allowed by permitting the defendants to cross-examine PW1 and reasonable time may be fixed for the same. The said submission is placed on record.
10. Having heard the learned counsel for the parties, it is clear from the records that the plaintiffs have filed the suit for permanent injunction contending that they are the owners of the suit schedule property and the same is disputed by defendant Nos.1 and 2 and contended that they are the owners. When it is not in dispute that the defendants requested the Court to grant reasonable time to further cross-examine PW1, the same was refused. At this stage, the present application was filed to recall PW1 and permit them to further cross-examine PW1. The Trial Court by the impugned order dated 9.1.2017 considering the previous deposition, it is ordered to consider I.A.No.VI after recording the evidence of defendants side. Admittedly when the cross-examination of PW1 was in half way, in all fairness, the Trial Court ought to have allowed the application to recall PW1 and permit the defendants to further cross-examine PW1. The question of postponing the application filed by the defendants for further cross-examination of PW1 would not arise. The Trial Court was not justified in passing the impugned order postponing the application after recording the evidence of defendants side.
For the reasons stated above, the writ petition is allowed. The impugned order dated 9.1.2017 on I.A.No.6 filed under Order XVIII Rule 17 read with Section 151 of CPC in OS No.7462/2011 passed by the City Civil and Sessions Judge, Bengaluru is quashed. I.A.No.6 filed under Order XVIII Rule 17 read with Section 151 of CPC in OS No.7462/2011 is allowed and permitted the defendants to further cross-examine PW1 on the next date of hearing without seeking any adjournment.
Ordered accordingly.
Bkm Sd/- JUDGE