IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.26616-26617/2014 (GM-CPC) BETWEEN:
1. MR. N.K BOOPENDRA S/O LATE N R KRISHNA REDDY AGED ABOUT 54 YEARS MR. N. R. KRISHNA REDDY SON OF LATE RAMAIAH REDDY SINCE DECEASED BY HIS LRS 2. MRS. SAROJAMMA, WIFE OF LATE N. R. KRISHNA REDDY, AGED ABOUT 85 YEARS.
3. MR. N. K. CHANDRASEKHAR REDDY SON OF LATE N. R. KRISHNA REDDY AGED ABOUT 57 YEARS 4. MR. N. K. SOMASEKHAR SON OF LATE N. R. KRISHNA REDDY, AGED ABOUT 53 YEARS, ALL ARE AT GARDEN HOSUE DODDANEKKUNDI VILLAGE BANGALORE – 560037.
5. MRS. GAYATHRI W/O SHAMANNA REDDY D/OF LATE N. R. KRISHNA REDDY, AGED ABOUT 50 YEARS, R/AT NO.1056/1 K. N. EXTENSION 6TH CROSS, 4TH MAIN, YESHWANTHPUR, BANGALORE 560 022.
6. MR. LOKESH SON OF LATE N. R. KRISHNA REDDY AGED ABOUT 48 YEARS GARDEN HOUSE, DODDANEKKUNDI VILLAGE BANGALORE 560 037 ... PETITIONERS (BY SRI H. S. CHANDRAIAH, ADVOCATE) AND:
LATE KAMALAMMA, W/O LATE H. N. GURUMURTHY REDDY D/O LATE N. RAMAIAH REDDY, SINCE DECEASED BY HER LRS.
MR. H. G. VASUDEVA REDDY S/O LATE H N GURUMURTHY REDDY SINCE DECEASED BY HIS LRS 1. MRS. PADMA VASUDEVA REDDY W/O LATE VASUDEVA REDDY AGED ABOUT 60 YEARS 2. MR. H. V. VINOD, S/O LATE VASUDEVA REDDY AGED ABOUT 42 YEARS, 3. MRS. H. V. MAMATHA, D/O LATE VASUDEVA REDDY AGED ABOUT 40 YEARS 4. MRS. H G VIMALAMMA D/O LATE H N GURUMURTHY REDDY W/O LATE VENUGOPAL REDDY AGED ABOUT 62 YEARS 5. MR. H G BABU REDDY S/O LATE H. N. GURUMURTHY REDDY AGED ABOUT 65 YEARS 6. MR. H G VIJAYA REGHAVA REDDY S/O LATE H N GURUMURTHY REDDY AGED ABOUT 60 YEARS 7. MRS PRABHAVATHI D/O LATE H N GURUMURTHY REDDY AGED ABOUT 57 YEARS 8. MR. H. G. VENKATESH D/O LATE H N GURUMURTHY REDDY AGED ABOUT 55 YEARS 9. MRS. H G VIJAYALAKSHMI S/O LATE H N GURUMURTHY REDDY AGED ABOUT 52 YEARS 10. MR H G SREENIVAS S/O LATE H N GURUMURTHY REDDY AGED ABOUT 50 YEARS ALL ARE AT C/O SRI H G VENKATESH NEAR LATE PATEL H D KRISHNA REDDY HOUSE CHIKKA BANASAVANAPURA VIRGONAGAR POST BANGALORE 560 049.
LATE N. R GURUMURTHY REDDY S/O LATE N RAMAIAH REDDY BY HIS LRS MRS. H. UMADEVI W/O N R GURUMURTHY REDDY (DEAD, SINCE SHE IS A PARTY BEFORE LOWER COURT, HER NAME WAS ALSO BEEN MENTIONED IN THE CAUSE TITLE, FOR BETTER APPRECIATION) 11. MR. H. G. MAHENDRA BABU S/O LATE N. R. GURUMURTHY REDDY AGED ABOUT 55 YEARS SINCE DECEASED BY HIS LRs RESPONDENTS 12 TO 15 ON RECORD 12. MRS H G GIRIJA D/O LATE N R GURUMURTHY REDDY AGED ABOUT 53 YEARS 13. MR H G SADHASHIVA S/O LATE N R GURUMURTHY REDDY AGED ABOUT 51 YEARS 14. MRS H G PADMAVATHI D/O LATE N R GURUMURTHY REDDY AGED ABOUT 49 YEARS 15. MR. H G SREENIVAS S/O LATE N R GURUMURTHY REDDY AGED ABOUT 47 YEARS SL. No.11 TO 15 ARE AT NO.844, RAJAPALYA WHITEFIELD MAIN ROAD BANGALORE - 560048 16. MR. N. R. SUNDARAMA REDDY S/O LATE N RAMAIAH REDDY AGED ABOUT 83 YEARS 9, 3RD MAIN ROAD A BLCOK, AECS LAYOUT KUNDANAHALLI POST BANGALORE 560 037 LATE N. R. RUKMINIYAMMA D/O LATE N. RAMAIAH REDDY W/O LATE PATEL H D KRISHNA REDDY SINCE DECEASED BY HER LRS 17. MRS. BHARATHAMMA D/O LATE N R RUKMINIYAMMA AGED ABOUT 64 YEARS 18. MRS. PUSHPA D/O LATE N R RUKMINIYAMMA AGED ABOUT 62 YEARS 19. MR. JAYASHEKAR S/O LATE N R RUKMINIYAMMA AGED ABOUT 59 YEARS 20. MR. H K SOMASEKAR S/O LATE N R RUKMINIYAMMA AGED ABOUT 57 YEARS 21. MR H K RAVI S/O LATE N R RUKMINIYAMMA AGED ABOUT 55 YEARS 22. MRS. H. K MALA D/O LATE N R RUKMINIYAMMA AGED ABOUT 51 YEARS RESIDING IN 23. MR H K SREENIVAS S/O LATE N R RUKMINIYAMMA AGED ABOUT 49 YEARS SL. Nos. 15 TO 23 ARE RESIDING IN LATE PATEL H D KRISHNA REDDY HOUSE CHIKKA BASAVANAPURA VIRGONAGAR POST BANGALORE 560 049.
... RESPONDENTS (BY SRI NAGARAJUN N, ADVOCATE FOR R5-R9 & R17-R23; SRI K.N. SUBBA REDDY, ADVOCATE FOR R12-R14;
R1 TO R4, R10, R16 ARE SERVED, UNREPRESENTED; R12 TO R-15 ARE LRS OF DECEASED R11; PETITION AGAISNT R-15 IS DISMISSED VIDE ORDER DATED 14.2.2019) **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET-ASIDE THE IMPUGNED COMMON ORDER DATED 8.4.2014, PASSED ON I.A.NO.11 & 12, IN OS.NO.2378/2004, BY THE LEARNED XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, AT BANGALORE VIDE ANNEXURE-F AND ALLOW THE I.A. NO.11 FILED BY THE DEFENDANTS, UNDER SECTION 151 OF CPC FOR RE- OPENING THE CASE AND I.A. NO.12 UNDER ORDER XVIII RULE 17 R/W SECTION OF CPC TO RE-CALL PW-2, FOR FURTHER CROSS EXAMINATION.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendants filed the present writ petitions against the order dated 8.4.2014 on I.A. Nos.11 and 12 made in O.S. No.2378/2004 dismissing the applications to re-open the case and for recalling the order dated 13.2.2014 for further cross-examination of PW.2.
2. The plaintiffs filed the suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. The same is disputed by the defendants by filing the written statement contending that there was earlier partition and the very suit filed for partition is not maintainable and sought for dismissal of the suit.
3. When the matter was posted for further cross- examination of PW.2 on 13.2.2014, the defendants were not present when the case was called and therefore taken the further cross-examination of PW.2 as nil. Therefore the application – I.A. No.11 under Section 151 of CPC for recalling the order dated 13.2.2014 and I.A. No.12 under Order 18 Rule 17 of the Code of Civil Procedure for permission to the defendants to further cross-examine PW.2 came to be filed, contending that when the matter was posted on 13.2.2014 for further cross-examination of PW.2, counsel for the 2nd defendant was engaged in some other Court and he was ready to further cross-examine PW.2, after finishing his 1st hearing and the absence of the advocate when the case was called in the 1st hearing on 13.2.2014 is neither intentional nor deliberate, but for the bonafide reasons. Therefore sought to recall the order dated 13.2.2014 and provide an opportunity for cross- examination of PW.2.
4. The said applications were resisted by the plaintiff by filing objections.
5. The trial Court considering the applications and the objections by the impugned order dated 8.4.2014 dismissed both the I.As. Hence the present writ petitions are filed.
6. I have heard the learned counsel for the parties.
7. Sri H.S. Chandriah, learned counsel for the petitioners – defendants contended that the impugned order passed by the trial Court dismissing the applications I.A. NOs.11 and 12 is erroneous and contrary to the material on record. He submits that when the case was called in the first hearing, counsel for the defendants was engaged in some other Court and by the time he reached the Court, the Court has taken the cross-examination of PW.2 as nil and posted for the defendant’s evidence. He submits that the absence of the counsel for the defendants on that day was neither intentional nor deliberate, but for the bonafide reasons. Therefore he seeks to quash the impugned order by allowing the present writ petitions.
8. The learned trial Judge considering the applications and the objections has recorded that on 16.1.2014 PW.2 was present and on account of the memo filed by the 2nd defendant, matter was adjourned to 30.1.2014 and on 30.1.2014 PW.2 was present and counsel for defendants prayed time and though plaintiff’s counsel opposed adjournment, it was adjourned to 13.2.2014. On 13.2.2014 PW.2 was present, but defendants and their counsel were absent and therefore cross-examination of PW.2 was taken as nil. The affidavit filed by the 2nd defendant discloses that his counsel was not present during the 1st hearing on 13.2.2014 and he has not whispered about his or other defendants’ presence before the Court when the case was called out. If really they were ready to go on with the further cross-examination of PW.2, nothing prevented them from submitting the same before the Court when the case was called out. This clearly goes to show that it is only an afterthought that their counsel was held up in other court. Therefore, the learned Judge proceeded to dismiss the applications.
9. It is not in dispute that the suit filed for partition and separate possession. It is stated in the affidavit by the 2nd defendant that when the matter was called on 13.2.2014 for cross-examination of PW.2, counsel for the defendants was engaged in some other Court and he could not present when the case was called and the absence of counsel for the defendants was neither intentional nor deliberate, but for the bonafide reasons and therefore opportunity has to be given for further cross-examination of PW.2. Though the writ petitions came to be filed in the year 2014, till today no interim order is granted by this Court and the trial Court has not proceeded and completed the proceedings. Now, the matter is posted for further evidence of defendants. Therefore no prejudice would be caused to the other side if the applications are allowed.
10. In view of the above and taking into consideration that the rights of the parties are involved in respect of the immovable property, in order to do justice between the parties, the opportunity has to be given to the defendants for further cross-examination of PW.2 subject to payment of costs and subject to the condition that on the next date of hearing or any other date to be fixed by the learned Judge, the defendants shall not seek any further adjournment and shall proceed for further cross-examination of PW.2.
11. In view of the aforesaid reasons, writ petitions are allowed. The impugned order dated 8.4.2014 on I.A. Nos.11 and 12 is hereby quashed. I.A. Nos.11 and 12 filed by the defendants to re-open the case and for recalling the order dated 13.2.2014 are hereby allowed. The defendants are permitted to further cross-examine PW.2 on the next date of hearing or any other date to be fixed by the learned Judge without seeking any further adjournment and subject to payment of costs of Rs.5,000/- (Rupees five thousand only) payable by the defendants to the plaintiff before the trial Court. On such payment, the trial Court is requested to permit the defendants to further cross-examine PW.2 and proceed in accordance with law.
Sd/-
JUDGE Gss/-