IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 9868 OF 2019 (GM-CPC) BETWEEN Smt. M.T. Shamla D/o Late M Thammaiah Aged about 49 Years Residing At No.67 G K Arcade Bull Temple Road Bangalore-560 004.
(By Sri A S Mahesha – Advocate for Sri S R Hegde Hudlamane - Advocate) AND 1. Smt. M.T. Jamuna D/o Late M Thammiah & W/o Sri G Arun Aged about 49 Years Residing At No.47, HIG 1st B Main Road B-Sector, Yelahanka New Town Bangalore-560 064 2. Smt Puttamma Aged about 75 Years W/o Late M Thammaiah 3. Smt Padmavathi Aged about 43 Years W/o Late M T Rajashekhar ...Petitioner Respondents no. 2 and 3 are R/o No.37, Old No.960 7th Cross, 2nd Block 1st Stage, Banashankari Bangalore-560 050 4. Smt M Kumari D/o Late Thammaiah W/o Sri Desai Aged about 54 Years AINS , Old Check Post Ananthapura Road Bellary-583 101 5. Smt M Sumana @ Gangamma D/o Late Thammaiah & W/o Sri Shamanna Aged about 52 Years Office Assistant Jain School Opp.V V Puram College K R Road Bangalore-560 004.
... Respondents (By Sri G Papi Reddy, Advocate for R-2 and R-3; Notice to R4 & R5 dispensed with, R-1 served) This Writ Petition is filed under article 226 of the constitution of India praying to quash the impugned order Annex-F passed by the learned XXVII Additional City Civil Judge Bangalore dated 23.2.2019 made in O.S. No. 1092/2015, on the I.A. filed by the petitioner under Order 18 Rule 17 r/w Section 151 of CPC by the exercising the power of supervisory jurisdiction and kindly allow the said I.A.
This petition coming on for Orders this day, the court made the following:
ORDER Defendant No.4 has filed the present writ petition against the order dated 23.02.2019 passed by the Court below rejecting the application filed under Order 18 Rule 17 of Code of Civil Procedure.
2. Plaintiff filed suit for partition and separate possession claiming 1/6th share which is morefully described in item No.1 and 2 of suit schedule properties. Defendant No.4 filed written statement denying the plaint averments, claiming 1/6th share after surrendering sum of Rs.30 lakhs received by her. Defendants No.1, 2 and 5 also filed written statement denying the averments made. The same was adopted by defendant no.3.
3. The Trial Court framed issues on 10.06.2016.
Plaintiff was examined and on subsequent dates she was cross-examined. On 14.12.2018 defendant no.1 was examined and she is yet to be cross-examined. When the matter came up before the Court on 16.02.2019 for cross of DW.1, the same was not done and therefore, it was closed and the matter was posted on 23.02.2019. On that day, Defendant No.4 filed an application under Order 18 Rule 17 of CPC to recall PW.1 and permit her to cross-examine PW.1. Both advocates for plaintiff, defendants No.1 to 3 and 5 to 7 were present. In the affidavit, Defendant No.4 contended that she had filed written statement on 15.04.2015 and specifically contended that she is entitled to 1/6th share of the schedule property deducting sum of Rs.30 lakhs. It was contended that plaintiff has been examined and was subjected to cross-examination by defendants no.1, 2 and 5. But as on the date of cross-examination, unfortunately, her advocate did not come, as a result she could not cross examine her. She is also claiming her share and become plaintiff in a suit of partition and separate possession. For non-examination of plaintiff on that date, the Court closed evidence of PW.1. She wanted to cross examine both plaintiff and other defendants and after that she may be permitted to cross- examine DW.1. Accordingly, she sought to allow her application. The Trial Court having gone through the written statement filed by defendant no.4 and also on perusal of applications, by the impugned order, rejected the applications. Hence, the present writ petition is filed.
4. I have heard learned counsel for the parties to the lis.
5. Sri Mahesh, learned counsel for the petitioner contended that the impugned order passed by the Trial Court rejecting the application filed by defendant No.4 is erroneous and contrary to the material on record. He further contends that for the mistake on the part of the counsel, the parties should not suffer. The Trial Court ought to have given one more opportunity to cross- examine PW.1 and the same has not been done in the present case which has resulted in miscarriage of justice.
6. He further contends that the petitioner is claiming her 1/6th share after surrendering amount of Rs.30 lakhs and she has also paid the court fees, as such she has right to cross examine all the witnesses in accordance with law.
7. First respondent though served, remained unrepresented.
8. Sri G.Papi Reddy, learned counsel for Respondents No.2 and 3 sought to justify the impugned order passed by the Trial Court and contended that after executing the release deed and after receiving Rs.30 lakhs, now the petitioner is claiming 1/6th share which is only an after thought. The application filed by the petitioner is only to protract the proceedings and sought for dismissal of the writ petition.
9. Having heard learned counsel for the parties, it is not in dispute that the suit is filed for partition and separate possession in respect of the suit schedule properties contending that the plaintiff and defendants are the members of joint family. The defendants have filed written statement. When the matter was posted for cross-examination of PW.1, on that day the counsel for defendant no.4 was not present and therefore, the Trial Court proceeded to close the evidence of PW.1. In the affidavit in support of application filed under Order 18 Rule 17 of CPC, it is stated that counsel for the defendant no.4 was not present when the case was called. Therefore, defendant no.4 who is the present petitioner in this petition could not cross-examine PW.1. Since, she is also claiming her 1/6th share and also paid the court fee separately towards her 1/6th share in the suit schedule properties, an opportunity ought to have been given to the petitioner.
10. It is relevant to note that when an application under Order 18 Rule 17 of CPC is filed to recall PW.1 and when nobody files objections, the learned Trial Judge ought to have given an opportunity to cross- examine PW.1. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable or removing injustice and is expected to do so.
11. In the present case, the suit is for partition.
The rights of the parties are invoked in respect of immovable properties. The Trial Court ought to have given an opportunity to the petitioner to cross-examine PW.1 by imposing costs and the same has not been done in the present case.
12. For the reasons stated above, the writ petition is allowed. The impugned order dated 23.02.2019 passed by the Court below in O.S.No.1092/2015 is hereby quashed. The application filed by the defendant no.4 under Order 18 Rule 17 read with Section 151 of CPC to recall PW.1 and permit to cross examine, is hereby allowed, subject to payment of costs of Rs.2,500/-. On the next date of hearing i.e., on 10.04.2019, the petitioner shall proceed to cross-examine PW.1 without seeking any further adjournment.
Ordered accordingly.
DKB Sd/- JUDGE