IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 13673 OF 2017 (GM-CPC) AND WRIT PETITION NO. 13674 OF 2017 (GM-CPC) BETWEEN:
L R SHIVARAME GOWDA S/O RAME GOWDA, PRESENT AGED ABOUT 61 YEARS, NO.42, 7TH MAIN, SUDHA MANSION, BANASHANKARI III STAGE, BANAGIRI HILLS, BANGALORE 560085.
… PETITIONER (BY SRI. NATARAJ BABA K, FOR SRI. SHANMUKHAPPA, ADVOCATE) AND:
1. THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, T CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU 560020.
2. THE DEPUTY COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY, T CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU 560020.
3. THE EXECUTIVE ENGINEER BENGALURU DEVELOPMENT AUTHORITY, BANASHANKARI II STAGE, BENGALURU 560070.
4. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, N R SQUARE, BENGALURU 560002.
5. THE ASST. EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE, PADMANABHANAGAR RANGE, WARD NO.55, BENGALURU 560070.
6. THE PRESIDENT/SECRETARY RADHAKRISHNA HOUSE BUILDING COOPERATIVE SOCIETY, LIMITED, NO.692, 10TH MAIN ROAD, 4TH BLOCK, JAYANAGAR, BENGALURU 560011.
7. SRI MUNICHANDRA S/O LATE RAMAIAH , AGED ABOUT 60 YEARS, NO.14, MUNESHWARA TEMPLE STREET, KADIRENAHALLI, BANASHANKARI II STAGE, BANGALORE 560070.
… RESPONDENTS (BY SRI. BHARGAV G, FOR SRI. C R GOPALASWAMY, ADVOCATE FOR R1 TO R3; SRI. C SHANKAR REDDY, ADVOCATE FOR R4 & R5; SRI. B V OMPRAKASH, ADVOCATE FOR R6;
SRI. PRAKASH HEBBAR, ADVOCATE FOR R7) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED ORDER DTD:06.02.2017 PASSED ON THE APPLICATION IA NO.4 AND 5 FILED BY UNDER SECTION 151 OF THE CPC AND ALSO UNDER ORDER 18 RULE 17 OF THE CPC IN O.S.NO.9290/2007 BY THE LEARNED 40TH ADDL. CITY CIVIL AND SESSIONS JUDGE, CCH NO.41, BENGALURU CITY VIDE ANNEXURE-A AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a declaratory suit in O.S.No.9290/2007 is invoking the writ jurisdiction of this Court for assailing the order dated 06.02.2017 a copy whereof is at Annexure-A whereby the learned XL Additional City Civil Judge, Bengaluru, having rejected his applications in IA Nos. 4 & 5 filed under Section 151 and under Order XVIII Rule 17 of CPC, 1908 respectively, has denied the opportunity of cross-examination of DW3 – the jurisdictional Tahsildar. After service of notice, the respondents having entered appearance through their Panel Counsel, resist the writ petitions.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that some reprieve needs to be granted to the petitioner because:
(a) ordinarily, a litigant should have the full opportunity of establishing his side of the case by examining his witnesses and by cross-examining the witness of the other side subject to all just exceptions; the right of cross-examination is held to a very valuable right not only for the demolition of the case of the other side but also for strengthening his own; such a right cannot be cut short except for very strong reasons;
(b) petitioner has moved two applications, viz., one for reopening of the case and the other for recalling DW3 to the witness box for being cross-examined; they are supported by affidavits offering plausible explanation for not cross-examining the said witness on earlier occasions; that being so, the Court below ought to have considered the request of the petitioner a bit leniently subject to cost & condition; this having not been done, there is an error apparent on the face of the record warranting indulgence of the Writ Court; and, (c) the contention of the learned counsel for the respondents that similar request already having been rejected, the same operates res judicata, is difficult to countenance; although the plea of res judicata is invokable at the successive stages of the same litigation, such discretionary decisions as are now put in challenge do not suffer res judicata, stricto sensu.
In the above circumstances, these writ petitions succeed in part; impugned order is set at naught; petitioners’ subject applications having been favoured, the case is reopened and DW3 is recalled to witness box for being cross-examined by the petitioner on payment of cost of Rs.10,000/- which the petitioner has already deposited in the Registry.
The Registry shall release the said amount to the first respondent; if the petitioner fails to cross-examine the said witness on the next date of hearing of the suit or within one month whichever is later, the order now quashed shall stand resurrected.
All other contentions of the parties are kept open.
Sd/- JUDGE Bsv