IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.15209/2019 (GM-CPC) & WRIT PETITION NO.18045/2019 BETWEEN:
1. SMT. MEENA, W/O. LATE N.A.GOPALA SHETTY, AGED ABOUT 54 YEARS, 2. SMT. DIVYA.G, D/O. LATE N.A.GOPALASHETTY, AGED ABOUT 36 YEARS, 3. SMT. DEEKSHA.G, D/O. LATE N.A.GOPALA SHETTY, W/O. SRI. R.GAJENDRA, AGED ABOUT 32 YEARS, RESIDING AT NO.218, NEAR WATER TANK, CHIKKA BEGUR, MADIWALA POST, BENGALURU-560 068.
4. SRI. DEEPAK.G.SHETTY, S/O.LATE N.A.GOPALASHETTY, AGED ABOUT 29 YEARS, 5. KUMARI DEEPIKA.G.SHETTY, D/O. LATE N.A.GOPALASHETTY, AGED ABOUT 26 YEARS, THE PETITIONERS NO.1, 2, 4 AND 5 ARE RESIDING AT NO.79, “GOKULA”, 5TH MAIN, 5TH CROSS, MANJUNATHANAGAR, OPP. I MICO GATE, C.K.NAGAR, ELECTRONIC CITY POST, BENGALURU-560 100. ... PETITIONERS (BY SMT. M.R.MAMATHA, ADVOCATE) AND:
SRI. N.A.SURENDRA SHETTY, S/O. LATE ANNU SHETTY, AGED ABOUT 54 YEARS, RESIDING AT NO.1180, 1ST FLOOR, SREE ESHWARA NILAYA, BEGUR, BENGALURU-560 068.
HAVING PERMANENT ADDRESS AT NETHAJI ROAD, KUSHAL NAGAR, SAKALESHPUR TOWN, SAKALESHPUR POST, HASSAN DISTRICT-573 134. ... RESPONDENT (BY SRI. PRADEEP NAIK, ADVOCATE ) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER FOUND AT ORDER DTD:18.3.2019 IN O.S.NO.850/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT AT BENGALURU VIDE ANNEXURE-A AND ALLOW THIS W.P WITH COST.
THESE PETITIONS COMING ON FOR “PRELIMINARY HEARING IN ‘B’ GROUP”, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners being the plaintiffs in a declaration suit in O.S.No.850/2008 are knocking at the doors of writ court seeking to lay a challenge to the order dated 18.03.2019, a copy whereof is at Annexure-A whereby, the Learned Principal Senior Civil Judge, Bengaluru, has dismissed their application in I.A.Nos.9 & 10 filed respectively under Order XVIII Rule 17 R/w Section 151 of CPC,1908 for re-opening of the subject case for facilitating the cross-examination of PW-2. After service of notice, the contesting respondent having entered appearance through his counsel, opposes the Writ Petition.
2. Learned counsel for the petitioners submits that the circumstances that resulted into PW-2 not being able to be present before the Court on previous hearing have been duly explained in the affidavit supporting their applications and therefore, the same ought to have been allowed especially when the justice of the case required it, of course, subject to cost & condition. The learned counsel for the respondent, per contra makes submission in justification of the impugned order.
3. Having heard learned counsel for the parties and having perused the petition papers, these Writ Petitions need to be allowed for the following reasons:
i) the applications of the petitioners filed under Section 151 and Order XVIII Rule 17 of CPC are being supported by a narrative affidavits; the explanation offered by the petitioners for not tendering PW1 for cross-examination on the previous date is prima facie plausible;
ii) ordinarily, the evidence tendered in deposition of the witness who does not offer himself for cross- examination can not become the evidence in the eye of law subject to all just exceptions; if petitioners are not permitted to offer PW-2 for cross-examination, his deposition runs the risk of not becoming the legal evidence and thereby the interest of the petitioners would be materially prejudiced; the cross-examination of PW-2, if permitted, would not cause any prejudice to the other side, and iii) personal difficulties of the litigants need to be borne in mind while denying the innocuous relief such as granting leave to offer the witness for cross-examination by the other side, subject to cost & conditions; there is no injury, which ordinarily cannot be compensated in terms of cost; even otherwise also justice of the case warrants granting of relief to the petitioners on cost & condition.
In the above circumstances, these Writ Petitions succeed; the impugned order is set aside; petitioners’ applications in I.A.Nos.9 & 10 having been favoured, they shall tender PW-2 for cross-examination by the other side on the next date of hearing, on payment of a cost of Rs.1,000/- on or before the next date of hearing, failing which the order now quashed, shall stand resurrected.
Sd/- JUDGE DS