IN T HE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.47441-47444/2017(GM-CPC) BETWEEN:
1. SMT. MOHAN BAI, W/O LATE GANESH LAL, AGED ABOUT 64 YEARS, 2. SRI. TARACHAND, S/O LATE GANESH LAL, AGED ABOUT 44 YEARS, 3. SRI SANJAYA KUMAR, D/O LATE GANESH LAL, AGED ABOUT 41 YEARS, PETITIONER 1 TO 3 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY SRI. VINOD KUMAR, 4. SRI. VINOD KUMAR, D/O LATE GANESH LAL, AGED ABOUT 35 YEARS, ALL ARE R/AT NO.26, 5TH MAIN, 5TH CROSS, M.B. COLONY, YESHWANTHPURA 560022.
BANGALORE. ... PETITIONERS (BY SRI RANJITH KUMAR, ADVOCATE FOR SRI PRUTHVI WODEYAR, ADVOCATE) AND:
SRI KANHAYALAL GANNA, S/O LATE MOOL CHANDJI, AGED ABOUT 71 YEARS, R/A NO.897/42, ANJANEYA TEMPLE STREET, YESHWANTHAPURA-560022.
BANGALORE. ... RESPONDENT (BY SRI S.P. KULKARNI, ADVOCATE FOR C/R) … THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 6.10.2017 PASSED BY THE COURT OF THE XIV ADDITIONAL CITY CIVIL JUDGE AT BANGALROE IN O.S.8877/2007 ONI.A. XV AND XVI AT ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs have filed the present writ petitions against the impugned order dated 6.10.2017 made in O.S.No. 8877/2007 dismissing the applications filed under Order XVIII Rule 17 r/w Section 151 and under Section 151 of the Code of Civil Procedure to recall and reopen the case.
2. The plaintiffs filed a suit for partition and separate possession and permanent injunction contending that the suit schedule properties belong to them and the defendant jointly, and there was no partition. The same was disputed by the defendant by filing the written statement wherein the entire plaint averments were denied and sought for dismissal of the suit.
3. When the matter was posted for cross- examination of D.W.2, at that stage, the present applications were filed by the plaintiffs – I.A.15 under Order XVIII Rule 17 r/w Section 151 of the Code of Civil Procedure for recalling the order dated 11.8.2017 and to permit them to cross-examine D.W.1 and I.A.16 under Section 151 of the Code of Civil Procedure for re- opening of the case contending that if opportunity is given to them, no prejudice would be caused to the defendants.
4. The defendant filed his objections denying the entire plaint averments and contended that the applications were filed at the belated stage and inspite of granting sufficient time, the plaintiffs have not availed the same and hence sought for dismissal of the applications.
5. The trial Court considering the applications and the objections, by the impugned order dismissed both the applications. Hence, the present writ petitions are filed.
6. I have heard the learned Counsel for the parties to the lis.
7. Sri Ranjith Kumar, learned Counsel appearing on behalf of Sri Pruthvi Wodeyar for the petitioners-plaintiffs submits that the suit is filed for partition and separate possession in respect of the immoveable property and if opportunity is provided to cross-examine D.W.1 subject to payment of costs, no prejudice would be caused to the defendant and therefore, he sought to quash the impugned order passed by the trial Court by allowing the writ petitions.
8. Per contra, Sri S.P. Kulkarni, learned Counsel appearing for the caveator/respondent submits that though the suit was filed in the year 2007 and inspite of granting sufficient opportunity, the petitioners-plaintiffs have not availed the same. Therefore, the cross-examination of D.W.1 was closed and when the matter is now posted for arguments, the above applications are filed. Hence, he sought to dismiss the writ petitions.
9. Sri S.P. Kulkarni, learned Counsel for the defendant fairly submits that the matter is now posted for arguments on 7.11.2017 and on that day, if the plaintiffs are able to cross-examine D.W.1 and complete the same on that day itself, the defendant has no objection for allowing the writ petitions subject to payment of costs.
10. Sri Ranjith Kumar, learned Counsel for the petitioners on instructions submits that the petitioners- plaintiffs will cross-examine D.W.1 without fail on 7.11.2017. The said submission is placed on record.
11. Without adverting to the merits and demerits of the case and considering the submissions made by the learned Counsel for the parties, it is suffice to direct the trial Court to permit the plaintiffs to cross-examine D.W.1 on 7.11.2017 without fail subject to payment of costs of Rs.3,000/- payable to the defendant on that day by the plaintiffs.
12. However, it is made clear that in case the plaintiffs fail to cross-examine D.W.1 on 7.11.2017, the trial Court shall proceed with the case in accordance with law and no further opportunity shall be given to the plaintiffs to cross-examine D.W.1. After completion of the cross-examination of D.W.1 on 7.11.2017 by the plaintiffs, the trial Court shall proceed to decide the suit as expeditiously as possible in accordance with law.
13. With the above observations, writ petitions are disposed of.
Sd/- Judge Nsu/-