IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.53052 OF 2018 (GM-CPC) BETWEEN:
SMT. N.K. ANURADHA W/O MR. S. NARANDRA KUMAR AGED ABOUT 51 YEARS R/AT #43/3, 1ST A CROSS BASA MAHAKAVI ROAD HANUMANTHANAGAR, 50 FEET ROAD BANGALORE-560 019 REP. BY POWER OF ATTORNEY HOLDER MR. S. NARANDRA KUMAR.
(By Mr. GIRIDHAR S.V. ADV.) AND:
1. M. TUKARAM AGED ABOUT 40 YEARS S/O T. MARUTHISA R/AT NO.2, SUBRAMANYAM LANE 2ND CROSS, COTTONPET BANGALORE-560 053.
2. M. SHIVAKUMAR AGED ABOUT 34 YEARS S/O T. MARUTHISA R/AT NO.2, SUBRAMANYAM LANE 2ND CROSS, COTTONPET BANGALORE-560 053.
… PETITIONER … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN ORIGINAL SUIT NO.5937 OF 2011 PENDING ON THE FILE OF XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-16), BENGALURU CITY, CULMINATING IN THE ORDER IMPUGNED & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Giridhar, learned counsel for the petitioner.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 25.10.2018 by which application preferred by the petitioner under Section 151 of the code for recalling DW1 for cross-examination has been rejected.
4. Learned counsel for the petitioner has invited the attention of this court to the additional affidavit in which explanation has been given as to why Defendant Witness No.1 could not be cross-examined on an earlier occasion. It is further submitted that the petitioner be put to such terms and conditions as this Court may deem just and proper and a time bound direction be given to the Trial Court to conclude the proceeding.
5. I have heard the learned counsel for the petitioner and have perused the record . Admittedly, the aforesaid application was filed after the parties had adduced the evidence. It is pertinent to mention here that at least three opportunities were granted to the petitioner between 17.04.2018 to 09.08.2018 for cross- examination of Defendant Witness No.1. However, the petitioner failed to avail off the same. The Trial Court has placed reliance on a decision of the Supreme Court in ‘GAYATHRI VS. M.GIRISH’, (2016) 14 SCC 142 and has rejected the application. The Trial Court has exercised the discretion to deal with the application under Section 151 of the Code on sound principles of law, which does not call for interference of this Court in exercise of its powers under Article 227 of the Constitution of India. Admittedly, the proceeding in the suit are fixed for 10.01.2019 for final arguments. Therefore, at this stage of the proceeding even otherwise, I am not inclined to interfere with the impugned order in exercise of supervisory jurisdiction under Article 227 of the Constitution of India which otherwise is discretionary in nature. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
In view of preceding analysis no case is for interference in this writ petition is made out. The same fails and is hereby dismissed.
Sd/- JUDGE SS