IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50336 OF 2019 (GM-CPC) BETWEEN:
SMT. IRFANA SHARIFF, W/O SRI. KHALEEMULLA SHARIFF, AGED ABOUT 41 YEARS, RESIDING AT NO.19/D, UMAR BAGH, KANAKAPURA ROAD, J.P.NAGAR POST, BENGALURU – 560 078.
(BY SRI. N.R.NAIK, ADVOCATE) AND:
MS. SINDHU B., AGED ABOUT 39 YEARS, D/O SRI. P.BALAKRISHNAN, RESIDING AT NO.389, 18TH ‘E’ MAIN, 6TH BLOCK, KORAMANGALA, BENGALURU – 560 095.
... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMON ORDER DATED 10.10.2019 PASSED ON IAs NO.19 TO 21, IN O.S.NO.16453/2006 C/W O.S.NO.6353/2009 BY THE FILE OF HON’BLE 13TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-22), MAYOHALL, BENGALURU CITY, BENGALURU VIDE ANNEXURE-J AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the plaintiff in O.S.No.6350/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 10.10.2019, a copy whereof is at Annexure-J, whereby, his applications in I.A.No.19, 20 & 21, in effect seeking for reopening of the case and for examining a particular person as a witness who happens to be one of the witnesses to the subject document, have been rejected by the learned XIII Additional City Civil Judge, Mayohall, Bengaluru.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter concurring with the reasoning of the Court below at para 6 of the impugned order, which reads as under:
“6. It is noticed from the order sheet of the case that already evidence on Plaintiff and defendant side is completed and case posted for arguments. Thereafter the PW1 recalled by the Plaintiff side, again PW1 further examine but he was not present before court for cross examination then the order sheet dt. 24-09-2018 cross examination of PW1 was taken as not tendered. Thereafter the matter was adjourn for defendant side evidence and as per order sheet dt. 15-11-2018 the defendant side counsel submitted that the evidence of defendant side was already closed then against case was posted for arguments. Then the Plaintiff filed applications on I.A.No.15 to 18 for reopen and recall of GPA holder of the Plaintiff for leading the evidence and those I.A.No.15 to 18 their rejected on 29.05.2019 and thereafter again matter was adjourned for arguments for 3-4 dates. Then on 15/07/2019 the present application are filed by the defendant praying permission to lead the evidence of one witness as contended in I.A.No.21. In the entire affidavit of accompanying I.A.No.19 to 21 the GPA holder of the defendant not narrated the reasons for non examination of the said witness earlier. The both clubbed suits are 10 year old cases and earlier the case was reopen for several time even though posted for final arguments. There is no proper reasons in the application for filing the applications for leading the further evidence on defendant side at this stage. Hence there is no merit in the application filed by the defendant.”
In the above circumstances, writ petition being devoid of merit, is rejected in limine.
However, liberty is reserved to the petitioner to make the impugned order a ground for challenging the judgment & decree if made adverse to his interest, as provided under section 105 read with Order XLIII Rule 1A of CPC, 1908.
Sd/- JUDGE DS