IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.10078 OF 2019 (GM – CPC) AND WRIT PETITION No.11428 OF 2019 BETWEEN :
1. SMT. KEMPAMMA, W/O SIDDEGOWDA, D/O THAGADEGOWDA @ DODDAPUTTEGOWDA, AGED ABOUT 69 YEARS, R/AT NO.48, KALLIMALEDODDI, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 428.
2. SMT. LINGAMMA, W/O MALLEGOWDA, D/O THAGADEGOWDA @ DODDAPUTTEGOWDA, AGED ABOUT 54 YEARS, R/AT NO.86, NITTUR, MALAVALLI TALUK, MANDYA DISTRICT – 571 430.
REPRESENTED BY HIS GAP HOLDER, SRI.K.S.MADEGOWDA, S/O LATE SIDDEGOWDA @ SOREGOWDA, AGED ABOUT 35 YEARS, R/AT KALLIMALEDODDI VILLAGE, KYATHAGATTA DAKLE, C.A.KERE HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 428.
... PETITIONERS (BY SRI.NITHISH FOR SRI. SATHISHA D.J., ADVs.,) AND:
1. SMT. S.K.PARVATHAMMA, W/O LATE T.RAMESH, AGED ABOUT 56 YEARS, R/AT NO.137, AREHALLI, ITTAMADU MAIN ROAD, UTTARAHALLI HOBLI, UTTARAHALLI, BANGALORE – 560 061.
2. SRI.LINGAIAH @ CHIKKATHAMMAIAH, S/O THAGADEGOWDA @ DODDAPUTTEGOWDA, AGED ABOUT 60 YEARS, R/AT HALLIKERE VILLAGE, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 428.
( BY SRI H.K.PAVAN, ADV., FOR R2; R1 DISPENSED WITH …RESP0NDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER AT ANNEXURE – G PASSED IN O.S.NO.9/2013 DATED 20.02.2019 BY THE LEARNED SENIOR CIVIL JUDGE AT MADDUR NO.23 & 24 AT ANNEXURE – D AND E AND ETC., THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The plaintiffs have filed these writ petitions against the order dated 20.02.2019 passed on I.A.No.23 and 24 in O.S.No.9/2013 dismissing the applications filed by the plaintiffs for re-opening the case for cross-examination of DW.3 and for recalling the order closing the stage of cross-examination of DW.3.
2. The plaintiffs filed a suit for partition and separate possession contending that the suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition. The defendants filed written statement admitting the relationship and disputed that Item no.23 is the self-acquired property of defendant No.1. They have sought for dismissal of the suit. After completion of evidence on both sides, when the matter was posted for arguments, at that stage, plaintiffs have filed two applications i.e., I.A.No.23 under Section 151 CPC and I.A.No.24 under Order XVIII Rule 17 r/w 151 CPC, contending that defendant No.2- Lingaiah @ Chikkathammaiah has been examined as DW.3 and he was cross-examined by defendant No.1. While preparing for arguments, plaintiffs’ counsel noticed that there are some aspects in the matter touching upon the merits of the case, warranting cross-examination of defendant No.3 by the plaintiffs. He has stated that by merely allowing the applications, no prejudice will be caused to the other side. Therefore, he has sought to allow the applications. The first defendant alone opposed the application by contending that application is belated and sought for dismissal of the application.
3. The trial court considering the applications and objections, by the impugned order dated 20.02.2019 dismissed the applications filed by the plaintiffs. Hence, the present writ petitions are filed.
4. I have heard learned counsel for the parties to the lis.
5. Sri. Sathisha D. J., learned counsel for petitioners has contended that the impugned order passed by the trial court rejecting the applications filed under Section 151 CPC, and under Order XVIII Rule 17 r/w 151 CPC, is erroneous and contrary to the material on record. He would further contend that the trial court has erred in holding that as the plaintiffs themselves have not opted for cross-examination of DW.3 at the relevant point of time i.e., much before the cross-examination by defendant No.1, at that stage, they cannot seek the permission to cross-examine DW.3 and it would definitely amount to get the admissions from DW.3 to fill the lacunae. The said finding is erroneous, as the suit is for partition and separate possession, there cannot be question of filling up any lacunae, as all the parties to the suit becomes plaintiffs. Therefore, he has sought to allow the writ petitions.
6. Per contra, Sri. Appaji Gowda, learned counsel for respondent No.1 and Sri. Thimmegowda, learned counsel for respondent No.2 have sought to justify the impugned order and contended that the plaintiffs themselves have not opted to cross-examined DW.3 at the relevant point of time after cross-examining DW.1. The applications now filed in only an afterthought. Therefore, sought to dismiss the writ petitions.
7. Having heard the learned counsel for parties, it is undisputed fact that the suit is filed by the parties for partition and separate possession in respect of 23 items contending that they are the joint family properties of plaintiffs and defendants. The defendants by filing the written statement have not disputed the relationship and contended that item no.23 is the self-acquired property of defendant No.1 and sought for dismissal of the applications. It is also not in dispute that DW.1 cross-examined DW.3 and after completion of arguments, at that stage, the present applications were filed. The trial court proceeded to reject the applications mainly on the ground that plaintiffs themselves have not opted to cross-examine DW.3 at the relevant point of time and if the application is allowed, it would amount to get the admissions from DW3 to fill up the lacunae. The trial court failed to notice that if an opportunity is provided to the plaintiffs to cross-examine DW.3, no prejudice whatsoever would be caused to the other side. The second defendant has been examined as DW.3. Mere permitting the plaintiffs to cross-examine DW.2 would not prejudice the case of other side. The trial court ought to have allowed the application in the interest of justice, but failed to do so. It is also relevant to state that the suit is of the year 2013 and application is filed in the year 2019. The trial court ought to have imposed reasonable cost and permitted the plaintiffs to cross-examine DW.3, however, the same has not been done.
8. For the reasons stated above, the writ petitions are allowed. The impugned order passed by the trial court dated 20.02.2019 on I.A.Nos.23 and 24 are hereby quashed. I.A.Nos.23 and 24 are allowed subject to condition that plaintiffs shall proceed to cross-examine DW.2 on the next date of hearing i.e., on 08.04.2019 or any date to be fixed by the learned Judge subject to payment of cost of Rs.5,000/- payable by the plaintiffs to defendant No.2 and the trial court shall proceed with the case in accordance with law.
Np/-
Sd/- JUDGE