IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.29603 OF 2019 (GM-CPC) BETWEEN:
SMT.INDIRA W/O. J.RAMA AGED ABOUT 62 YEARS UMMANNA COMPOUND CYCLE ROAD, MORGAN’S GAGE, MANGALORE TALUK D.K.DISTRICT ... PETITIONER (BY SRI S.RAJASHEKAR, ADVOCATE) AND:
1. K.DEVDAS KUMAR S/O. LATE K.GOPAL AGED ABOUT 53 YEARS 2. SMT.B.L.PREMILA DEV W/O.K.DEVENDRAKUMAR AGED ABOUT 48 YEARS BOTH R/AT ‘SRI.KATEEL’ OLD KENT ROAD PANDESHWAR MANGALORE-575 001 D.K.DISTRICT ... RESPONDENTS (BY SRI KETHAN KUMAR, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 05.07.2019(ANNEXURE-A) PASSED BY THE COURT OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MANGALORE ON I.A.NO.26 IN OS.NO.691/2009 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the defendant in an eviction suit in OS.No.691/2009 is knocking at the doors of the writ Court for assailing the order dated 05.07.2019, a copy whereof is at Annexure – A, whereby the learned II Additional Civil Judge, JMFC, Mangaluru, having rejected his application in I.A.No.26 filed under Order XVI Rule 7 of CPC, has refused to summon the three persons for examining them as her witnesses. After service of notice, the respondents have entered appearance through their counsel, and resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grant relief to the petitioner for the following reasons:
a) the suit is for eviction, the issues have been framed on 26.05.2010; issue No.3 whereof reads as under:
“3.Whether defendant proves that alleged agreement of sale is concocted one?”
apparently, the burden is cast on the petitioner; for discharging the initial burden, the petitioner needs to examine, whichever witnesses she wants to, since she has a larger latitude in choice;
(b) rejecting petitioner’s application for summoning the subject three witnesses virtually amounts to taking away her primary right of defense, which is not a happy affair in adjudication; it is well established principle of law of evidence that ordinarily the litigant should be free to prove his stand by adducing whatever evidence oral or documentary as he desires; such a right can be curtailed only on cogent justification which is absent in the impugned order; and (c) justice of the case require that the petitioner be permitted to summon the named witnesses and examine them on the next date of hearing of course, on payment of cost to the other side and without dragging on the case.
In the above circumstances, this writ petition is allowed, the impugned order is set at naught; petitioner’s subject application in I.A.No.26 having been favoured, the Court below is directed to summon the three witnesses on payment of cost of Rs.2,500/- to each of the respondent-plaintiffs within one month, failing which, the order now quashed shall stand resurrected.
The Court below shall ensure that the examination of the three named witnesses is accomplished within an outer limit of two months.
Sd/- JUDGE KTY