IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50766 OF 2017 (GM-CPC) BETWEEN:
SMT. CHINNAMMA, W/O LATE THIMMAPPA, AGED ABOUT 75 YEARS, R/AT NO.89/1; 8TH CROSS, SHARADAMBHANAGAR, JALAHALLI VILLAGE, BENGALURU – 560 013.
(BY SRI. THIMMAPPA H., ADVOCATE) AND:
1. SRI. K.M.KRISHNAPPA, S/O LATE A.MUNUSHAMAPPA, AGED ABOUT 70 EYARS, 2. SRI. K.V.PRAKASH, S/O LATE VENKATARAMAPPA, AGED ABOUT 47 YEARS, 3. SRI. K.G.NATARAJ, S/O SRI DODDA GUDIYAPPA, AGED ABOUT 44 YEARS, ALL ARE RESIDING AT KAJIKALLAHALLI VILLAGE, NARASAPURA HOBLI, KOLAR TALUK, KOLAR DISTRICT-563 133.
(BY SRI. GOVINDARAJU S.M., ADVOCATE FOR SRI. G.M.RAMAIAH GOWDA, ADVOCATEFF) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, KOLAR IN O.S.NO.292/2014; QUASH THE IMPUGNED ORDER DATED 3.11.2017 ON I.A.NO.12 IN O.S.NO.292/2014 PASSED BY THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AS PER ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the first defendant in a specific performance suit in O.S.No.292/2014 is invoking the writ jurisdiction of this Court for assailing the order dated 03.11.2017, whereby the learned II Additional Civil Judge, Kolar, having dismissed her application in I.A.No.12 filed under Order XVIII Rule 17 r/w Section 151 of CPC, 1908, has refused to recall the plaintiffs witness to the box for further cross-examination. After service of notice, the respondent- plaintiffs having entered appearance through their counsel, vehemently oppose the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, reprieve needs to be granted to the petitioner because:
a. the suit is for a decree of specific performance founded on an agreement to sell dated 07.05.2011 which apparently comprises of two immovable properties of huge worth; it is true that the petitioner had already cross-examined the witnesses, but further cross-examination is warranted in the facts and circumstances of the case made out by her on affidavit supporting the subject application; and b. it is a cardinal principle of fair adjudication that parties to the proceedings should have full opportunity subject to the rider that the proceedings in the guise of availing the opportunity are not dragged on ad infinitum; however, in the fitness of things, the Court below could have allowed the subject application for further cross-examination of the witnesses concerned on cost and condition; this having not been done, there is an error apparent on the face of the record warranting indulgence of this Court.
In the above circumstances, this Writ Petition is favoured; the impugned order is set at naught; petitioner’s subject application having been allowed, she is permitted to cross-examine the witnesses of the plaintiff side on the next date of hearing subject to the rider that i) petitioner shall not seek even one single adjournment in the suit proceedings; and, ii) petitioner shall pay a cost of Rs.5,000/- to each of the witnesses on the day when they re-enter the witness box for cross-examination.
failing which, petitioner’s right of further cross- examination now granted, shall stand forfeited.
The learned counsel for the respondents is justified in making the prayer and accordingly, the learned trial judge is requested to try and dispose off the suit preferably within an outer limit of one year.
All contentions of the parties are kept open.
Sd/- JUDGE DS